March 7, 2012

The Florida 5th District Court of Appeal has reversed a summary judgment which was entered in favor of  Novastar Home Mortgage, which was a nonparty to the suit as it had previously withdrawn from the case. The entry of a judgment in favor of a non-party was found by the appeals court to be “fundamental error”. However, this was only the tip of the iceberg.

The Court also held that the judgment would have to be reversed even it had been entered in favor of BONY (as trustee of a securitized mortgage loan trust), as BONY failed to show that it was entitled to enforce the “lost” note when it was lost. BONY offered no proof of who lost the note or when it was lost, and no proof of anyone’s right to enforce the note when it was lost. This is the same set of reasons why an Iowa court has repeatedly denied summary judgment to Wells Fargo in a case where Mr. Barnes represents the homeowner, as we previously reported.

The holding also found that BONY produced no evidence of ownership due to the alleged transfer from Novastar to BONY. The footnote to this part of the opinion is perhaps the most important and significant.

The Court held that “The record contains a copy of an assignment of the note from Novastar to Mellon [BONY], but the document was never offered into “evidence” by being attached to an affidavit for purposes of authentication. As such, it is not competent evidence of the assignment and cannot be considered in ruling on Mellon’s motion.”

This is the first decision we have seen where a court has actually required an assignment to be authenticated in order to be considered on a motion for summary judgment. The recent Florida and North Carolina cases we previously reported highlighted the necessity of authenticating endorsements. The Florida courts will now be applying this same authentication requirement to assignments. As such, all of the requirements of personal knowledge, etc. will have to be met before an Assignment will be permitted to be considered in the context of a motion for summary judgment of foreclosure in Florida.

The case is Beaumont v. Bank of New York Mellon, Case No. 5D10-3471 (Opinion filed February 17, 2012). We thank one of our readers for bringing this very important decision to us.

Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com