Thursday, April 22, 2010

Unsigned Loan Documents Without An Affidavit Cannot Support Summary Judgment

[UPDATE: The Fourth District granted rehearing and affirmed the trial court. The decision on rehearing was discussed HERE.]

In Riggs v. Aurora Loan Services, LLC (4D08-4635), the Fourth District reversed a summary judgment of foreclosure based upon the appellants "objections that Aurora’s status as lawful “owner and holder” of the note was not conclusively established by the record evidence."  The Fourth District stated:
Aurora filed a copy of the mortgage and a copy of the promissory note, which named Riggs as the mortgagor and First Mangus Financial Corporation as the mortgagee. The promissory note reflected an “endorsement in blank,” which is a stamp with a blank line where the name of the assignee could be filled in above a pre-printed line naming First Mangus.
In the instant case, th e endorsement in blank is unsigned and unauthenticated, creating a genuine issue of material fact as to whether Aurora is the lawful owner and holder of the note and/or mortgage. As in BAC Funding Consortium, there are no supporting affidavits or deposition testimony in the record to establish that Aurora validly owns and holds the note and mortgage, no evidence of an assignment to Aurora, no proof of purchase of the debt nor any other evidence of an effective transfer. Thus, we reverse the summary judgment and remand for further proceedings. We find no merit in any of the other arguments raised on appeal.


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