Saturday, July 9, 2011

Note Indorsed In Blank Is All That Is Required To Enforce Note

In Harvey v. Deutsche Bank National Trust Company (4D10-674), the Fourth District issued an opinion on rehearing in order to address the points raised in the appellant's brief.

In the trial court, Deutsche Bank filed a two count foreclosure complaint. Attached to the complaint was a "substantial" copy of the note and a copy of the mortgage. The note was indorsed in blank. The complaint alleged that the appellant had defaulted on the mortgage. Deutsche filed a motion for summary judgment, an affidavit of indebtedness and an affidavit of lost note. The appellant raised numerous arguments in opposition to the summary judgment motion including that she had "reason to believe that the assignment is fraudulent, manufactured paperwork." The trial court determined that Deutsche was entitled to enforce the note and entered judgment. The appellant then filed a motion for reconsideration which the trial court denied and the appellant appealed the judgment and the rehearing order.

The Fourth District held that the "person entitled to enforce a negotiable instrument, such as a promissory note, is the 'holder of the instrument'." Because the note was indorsed in blank, Deutsche was the holder of the negotiable instrument and entitled to enforce the note "regardless of any recorded assignments." Even if the assignment was forged as the appellant alleged that would only be a dispute between the note holder and the prior note holder. The court also noted that "importantly, [the appellee] has never denied that she was in default as to her mortgage payments.


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