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Cutler v. U.S. Bank. N.A.

By Kerry McInerney • Sunday, October 21, 2012

In Cutler, the appellate court for the Second District addressed the issue of whether an undated allonge created a factual dispute justifying reversal of summary judgment in favor of the lender in a foreclosure action. The foreclosure action was filed in the Circuit Court of Hillsborough County on September 22, 2008. The mortgage was attached to the complaint, but the mortgage assignment was not. The lender’s complaint represented that the mortgage had been assigned.

After moving for summary judgment on February 18, 2010, the lender filed the original note with an undated allonge signed in blank. On October 1, 2010, the trial court granted summary judgment and set a sale date. The borrowers appealed alleging the bank did not have standing to foreclosure because (i) the mortgage had not been assigned into the foreclosing lender at the time the complaint was filed, and (ii) that the lender was not the holder of the note on the date that the Complaint was filed.

The Second District Court of Appeal, in citing a 2004 case, held on the first issue that the date of the assignment is irrelevant so long as the note is adequately transferred to the foreclosing lender because under Florida law, the mortgage follows the note. The court then went on to address whether the lender was the noteholder at the time the complaint was filed. The court acknowledged that under Florida law, if the lender is the noteholder as of complaint filing, the lender has the authority to foreclose. Since the allonge transferring the note to the foreclosing lender was undated, the court held that a factual question existed as to when the foreclosing lender became the noteholder. Accordingly, the case was remanded for further proceedings.

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