Editor: David Reiss
Brooklyn Law School

February 4, 2013

Florida Court of Appeals Held that Bank Defendant had Standing to Bring Foreclosure Claim and Plaintiff’s Due Process Rights were Not Violated

By Robert Huberman

In Harvey v. Deutsche Bank Nat. Trust Co., 69 So. 3d 300 (Fla. Dist. Ct. App. 2011), the District Court of Appeal of Florida, Fourth District, held that Deutsche Bank had standing to bring a foreclosure action as holder of the promissory note, and Harvey’s (borrower/homeowner’s) due process rights were not violated when the Circuit Court denied his motion for reconsideration without a hearing.

On September 17, 2009, Deutsche filed a motion for summary judgment, along with an affidavit of indebtedness. However, on September 30, 2009, Deutsche filed an affidavit of lost note. At that point, the trial judge told Harvey that nothing would be done until the lost note affidavit was in the court’s file. On October 29, 2009, Deutsche filed a copy of the assignment of mortgage from MERS to Deutsche, with an effective date of March 31, 2009.

Harvey argued that the assignment was fraudulent because it was not filed until twenty days after Deutsche filed the foreclosure. But the trial judge claimed that there was no record evidence supporting Harvey’s position. Harvey then filed a motion for reconsideration which was denied by the Circuit Court. Harvey appealed claiming 1) summary judgment should not have been granted because a genuine issue of material fact existed as to Deutsche’s standing to foreclose and 2) the Circuit Court erred and violated Harvey’s due process rights by denying his motion for reconsideration without holding a hearing. Here, the Court held 1) because the note at issue was payable to AHMAI, indorsed in blank, and Deutsche possessed the original note and filed it with the Circuit Court, Deutsche’s standing could be established from its status as the note holder regardless of any recorded assignments. 2) Harvey failed to present evidence supporting her argument that the mortgage assignment had questionable signatures. And 3) due process does not require a trial court to hold a hearing before it denies a motion for a new trial. Thus, since the Circuit Court properly found that Deutsche had standing to enforce the note — based on uncontroverted record evidence—Harvey’s motion for reconsideration was properly denied without a hearing and summary judgment was properly granted.

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