March 29, 2017

5th DCA Win for Homeowner – Khan, Appellant, v. Bank of America NA

This just out from Florida’s 5th District Court of Appeals! Big win for homeowner and defense bar in Florida. The essence of this decision was that Bank of America alleged to be owner and holder of the Note and Mortgage but, like a HUGE number of these cases, the documents that they attached to their Complaint directly conflicted with those allegations (as in the Note was payable to a different entity)!

The lower court granted summary judgment anyway, presumably because the Judge felt that well-established case law in Florida didn’t matter that the exhibits attached to a complaint are controlling when the allegations conflict. Just one more example… well, you know that already!

Here you go…

36 Fla. L. Weekly D738a

Mortgage foreclosure — Standing — Error to enter final summary judgment of foreclosure in favor of plaintiff where, although unverified amended complaint alleged plaintiff was holder of note and mortgage, this allegation was contradicted by copy of note attached to amended complaint — When exhibits are attached to complaint, contents of exhibits control over allegations of complaint

SHAKIL KHAN AND DINA KHAN, Appellant, v. BANK OF AMERICA, N.A., Appellee. 5th District. Case No. 5D10-3288. Opinion filed April 8, 2011. Non-Final Appeal from the Circuit Court for Orange County, Emerson R. Thompson, Jr., Senior Judge. Counsel: Craig R. Lynd, Matthew D. Valdes and Jonathon C. Blevins, of Kaufman, Englett & Lynd, PLLC, Orlando, for Appellant. No Appearance for Appellee.

(ORFINGER, J.) Shakil and Dina Khan appeal a final summary judgment of foreclosure entered in favor of Bank of America, N.A. We reverse.

In its amended complaint to foreclose a mortgage on the Khans’ home, Bank of America alleged that it was the owner and holder of the note and mortgage. However, the copy of the note attached to the amended complaint bears an endorsement from Bank of America to Wells Fargo Bank, N.A. as trustee for the holders of Banc of America Mortgage Securities, Inc. Mortgage Pass-Through Certificates, Series 2006-B. The Khans correctly raised the issue of Bank of America’s standing to prosecute the foreclosure based on the assignment of the note to Wells Fargo Bank.

The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See Taylor v. Deutsche Bank Nat. Trust. Co., 44 So. 3d 618, 622 (Fla. 5th DCA 2010); BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010). While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000). Because the exhibit to Bank of America’s amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law. As a result, the trial court acted prematurely in entering the final summary judgment of foreclosure in favor of Bank of America. We, therefore, reverse the final summary judgment of foreclosure and remand for further proceedings.

REVERSED and REMANDED for further proceedings. (PALMER and EVANDER, JJ., concur.)

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