DEFENDANT�S MEMORANDUM ON ASSIGNMENTS OF MORTGAGE by Isq1Iz3

VIEWS: 13 PAGES: 5

									             IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
                     IN AND FOR PINELLAS COUNTY, FLORIDA
                                 CIVIL DIVISION

CITIMORTGAGE, INC.,                                                  CASE NO. 11-000116-CI-8

               PLAINTIFF,

v.

DAVID L. SEYMOUR,

            DEFENDANT.
_________________________________________/

         DEFENDANT’S MEMORANDUM ON ASSIGNMENTS OF MORTGAGE


        COMES NOW, the Defendant DAVID L. SEYMOUR (hereinafter “Defendant”), by

and through undersigned attorney and files this Defendant’s Memorandum of Assignments of

Mortgage pursuant to this Court’s direction at hearing on September 28, 2011, and states as

follows:

                                             FACTS

     1. Plaintiff filed its Complaint to Foreclose Mortgage with Pinellas County. The Complaint

is filed with three exhibits relevant for this motion: (1) a Note that lists the lender as Absolute

Mortgage Co Inc. without an indorsement, (2) a Mortgage that lists the lender as Absolute

Mortgage Co Inc., and (3) an assignment of mortgage that “assigns and transfer the … Mortgage

unto the Assignee.”

     2. It is important to mention that the assignment of mortgage only purports to transfer the

Mortgage to the Plaintiff. It makes no attempt to transfer the underlying debt, the Note, to the

Plaintiff.




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                                                 ISSUE

   Whether the pledge of a mortgage, via an assignment of mortgage, without any reference to

the note, vests any rights in the assignee of mortgage?

                                       RELEVANT CASE LAW

   3. The “mortgage security follows the note.” See footnote 2 of MERS v. Revoredo, 955

so.2d 33 (Fla. 3rd DCA 2007) citing 37 Fla. Jur. 2d Mortgages § 519 (2007).

   4. The First District Court of Appeal dealt with a nearly identical fact pattern as this, and

reasoned:

        [T]he issue, the resolution of which is dispositive of this appeal, is whether the
        pledge of a mortgage without reference to the note or obligation secured vests any
        rights in the pledge. The law seems to be well settled that it does not. A mortgage
        is a mere incident of, and ancillary to, the note or other obligation secured
        thereby, and an assignment of the pledge of the mortgage without an
        assignment of the pledge of the note or obligation secured thereby creates no
        right in the assignee or pledge. Sobel v. Mutual Development, Inc., 313 So.2d
        77 (Fla. 1st DCA 1975). Bold emphasis added.

   4. This factual pattern is different than the case in Taylor v. Deutsche Bank, 44 So.3d 618

(Fla. 5th DCA 2010) where the assignment of mortgage assigned both the Mortgage and the

Note:

        The written assignment filed as part of the summary judgment documents in the
        case before us specifically recites that MERS assigned to the appellee, Deutsche
        Bank, “the Mortgage and Note, and also the said property unto the said Assignee
        forever, subject to the terms and conditions contained in the Mortgage and Note.”
        (emphasis supplied). More importantly, as a nonholder in possession of the
        instrument who had the rights of a holder, MERS assigned to Deutsche Bank its
        explicit power, granted by the mortgage, to enforce the note by foreclosing the
        mortgage on the subject property. Bold emphasis added.


   5. In mortgage foreclosure actions, there are two key documents at issue, 1) the




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mortgage and 2) the promissory and while we speak of “foreclosing a mortgage”, it is the

original “blue ink” promissory note that is the key document in a foreclosure action, and not the

mortgage. In fact, it has been clearly stated in WM Specialty Mortg., LLC v. Salomon, 874 So.

2d 680, 682 (Fla. 4th DCA 200) that


       "a mortgage is but an incident to the debt, the payment of which it secures, and its
       ownership follows the assignment of the debt. If the note or other debt secured by a
       mortgage be transferred without any formal assignment of the mortgage, or even a
       delivery of it, the mortgage in equity passes as an incident to the debt. . . ." Id. (quoting
       Johns v. Gillian, 184 So. 2d 140, 143 (Fla. 1938)).

   6. This important distinction must always be remembered. In fact, it is the obligation of the

court when entering a Final Judgment of Foreclosure to insist on the surrender of the original

promissory note to the court so that the court can take possession of the note, mark

CANCELLED on the note or otherwise remove the promissory note from the stream of

commerce.      Moreover, in the case of original mortgages and promissory notes, they are not

merely exhibits but instruments which must be surrendered prior to the issuance of a judgment.

The judgment takes the place of the promissory note. Surrendering the note is essential so that it

cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla.

5th DCA 2004). The judgment cancels the note. The clerk cannot return these instruments to the

parties. A plaintiff must tender the original promissory note to the trial court or seek to

reestablish the lost note under section 673.3091, Florida Statutes. State St. Bank & Trust Co. v.

Lord. 851 So.2d 790, 791 (Fla. 4th DCA 2003).

   7. Moreover, if the note does not name the plaintiff as the payee, the note must bear a

special indorsement in favor of the plaintiff or a blank indorsement. Riggs v. Aurora Loan

Servs., LLC. 36 So.3d 932, 933 (Fla. 4th DCA 2010)




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                                                 ANALYSIS

    5. Both the courts in Sobel and Taylor, make one thing painstakingly clear, an assignment

of mortgage creates no legal obligation unless it, by its own terms, purports to transfer the note.1

    6. Without explicit language in the assignment of mortgage that the note is transferred, the

assignment or pledge creates no legal rights.

    7. Therefore, one must look to the assignment of mortgage and determine if the note has

been assigned. Here, the Plaintiff made no attempt to assign the Note in question; consequently,

the assignment, by itself, does not provide Plaintiff the standing to pursue this action.

    8. If the note attached to the complaint was indorsed, that might provide Plaintiff the

standing to sue, however, that is not the case here.

                                               CONCLUSION

    9. The failure to provide any evidence of transfer of the Note in question prevents the

Plaintiff from bringing this action, and therefore, the action should be dismissed. The documents

attached to the Complaint show that the lender is the only entity entitled to bring this action.




1
 Highlighted by both cases:
“an assignment of the pledge of the mortgage without an assignment of the pledge of the note or obligation
secured thereby creates no right in the assignee or pledge.” Sobel v. Mutual Development, Inc., 313 So.2d 77 (Fla.
1st DCA 1975). Bold emphasis added.
“More importantly … [the assignment] assigned to Deutsche Bank its explicit power, granted by the mortgage,
to enforce the note” Taylor v. Deutsche Bank, 44 So.3d 618 (Fla. 5th DCA 2010) Bold emphasis added.

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                              CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
U.S. Mail on this 29th day of September, 2011 to MARY E. BEASLEY, Morris Hardwick
Schneider, LLC, 5110 Eisenhower Blvd., Suite 120, Tampa, FL 33634.


                                                        By:__________________________
                                                            Jason M. Kral, Esq.
                                                            Matthew D. Weidner, P.A.
                                                            Attorney for Defendant
                                                            1229 Central Avenue
                                                            St. Petersburg, FL 33705
                                                            (727) 894-3159
                                                            FBN: 97952




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