February 8, 2012

In an opinion released today on JPM’s Motion for Clarification, the Florida 4th District Court of Appeal has reversed a summary judgment which was entered in favor of JPM, which is the claimed “trustee” of a securitized mortgage loan trust. The opinion clarifies the importance and necessity of evidence as to when an endorsement is placed on a note for purposes of standing to sue.

A MERS Assignment of the “lost note” from the (bankrupt) American Brokers’ Conduit was executed three days after the lawsuit was filed. JPM later managed to “find” the original “lost” note, and filed the note with an undated “special endorsement” to JPM by American Brokers’ Conduit.

The important point of this opinion is that the Court focused on the fact that the “special endorsement” to JPM on the note was undated, and that JPM’s Affidavit in support of its motion for summary judgment contained no evidence or information was to when JPM became the owner of the note. As such, this Florida appellate court has finally dug deeper into the “endorsement” argument used by “banks”, and has held that there has to be evidence as to when the endorsement was placed on the note and that this evidence must show that the plaintiff had the right to enforce the note on the date that the suit was filed (citing a 2011 opinion from a Vermont court in support of its conclusion).

The last sentence of the opinion is perhaps the most significant: “An evidentiary hearing may also be required if there is disputed evidence on an issue, such as to the date the note was endorsed to Chase.” All too often, the “endorsements” do not bear a date as to when the endorsement was placed on the note, which this opinion now makes clear is an issue of material fact which precludes summary judgment.

What the opinion did not discuss was the issue of whether MERS, as the alleged “nominee” of the bankrupt American Brokers’ Conduit, even had the authority to execute the Assignment, or under what authority the bankrupt American Brokers Conduit could have placed the undated endorsement on the note to begin with.

We thank one of our dedicated readers for providing a copy of this opinion to us today.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com