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IN THE CIRCUIT COURT FOR SARASOTA
COUNTY, FLORIDA. CIVIL DIVISION
CASE NO. 582007CA007735XXXXXX S$C~
AURORA LOAN SERVICES, LLC.,
oso
Plaintiff, ge =
von TS
ANGELA NISBET; MORTGAGE ELECTRONIC RQom fF
REGISTRATION SYSTEMS, INC., AS NOMINEE cChD ps
FOR AEGIS WHOLESALE CORPORATION MIN. aay = 2
NO. 100053030007553796; UNKNOWN TENANT 680 2 &
NO. 1; UNKNOWN TENANT NO. 2; and ALL SA na UT
UNKNOWN PARTIES CLAIMING INTERESTS BY,
THROUGH, UNDER OR AGAINST A NAMED
DEFENDANT TO THIS ACTION, OR HAVING OR
CLAIMING TO HAVE ANY RIGHT, TITLE OR
INTEREST IN THE PROPERTY HEREIN
DESCRIBED,
Defendants.
/
MOTION FOR
SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES
Plaintiff, AURORA LOAN SERVICES, LLC. (hereinafter referred to as "Plaintiff") its
successors and assigns by and through its undersigned counsel, moves this Court, pursuant to Florida
Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the
above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to
judgment as a matter of law based on the pleadings and affidavits filed in this action.
l.
FORECLOSURE: This is an action by Plaintiff, to foreclose the mortgageon real
property situated in Sarasota County, Florida.
2. STANDING: Plaintiff, as servicer for the owner and acting on behalf of the owner with
authority to do so, is the present designated holder of the note and mortgage with authority to pursue the
present action, and is thereby entitled to enforce the instruments in accordance with F.S.A. §673.3011,
-
ee
~~,which provides in pertinent part that “. . . [a] person may be. . . entitled to enforce [an] instrument even
though the person is not the owner of the instrument... “. Additionally, Fla. R. Civ. Pro. 1.210(a),
provides in pertinent part that “every action may be prosecuted [by] a party with who or in whose name a
contract has been made for the benefit of another . . . in that persons name without joining the name of
the party for whose benefit the action 1s brought.”
3. DEFAULT: The Note is due for February 1, 2007, and all subsequent payments, which
has resulted in a default of the note and mortgage .
4. PROPERTY: The legal description of the subject property is set forth in the complaint.
5. SERVICE: All Defendants have been served with notice of this action.
6. LOST NOTE: The original promissory note has been lost and is not in the custody or
control of Plaintiff. The note was continuously in possession and control of Plaintiffs assignors and
predecessors from the date of its execution until the loss of the note and has not been paid or otherwise
satisfied, assigned or transferred.
7. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior
to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or
under them.
8. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of
indebtedness, Plaintiffs affidavit of attorneys fees and costs, affidavit of reasonableness of fees, the
mortgage, the promissory note.
9. MEMORANDUM OF LAW: The substantial matters of law upon which this motion is
based are as follows:
a. A mortgage is presumed to have been validly executed and delivered on
the date recited in the mortgage if the mortgage is proven of record and recorded according to the law.
Atlantic Land and Improvement Company v. Lee, 112 So.2d 549, 550 (Fla. 1927).b. Where a note secured by a mortgage is transferred without any formal
assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some
plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery
of a note and mortgage, with intention to pass the title, upon a proper consideration, wil! vest the
equitable interest in the person to whom it is so delivered." Jd., at 143. "Because the lien follows the
debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in
order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector,
742 So.2d. 300 (Fla. 1“ DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a
promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v.
Redner, 652 So2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896);
Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla 1st DCA 1966). The "holder", with respect to a
negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the
case of an instrument payable to an identified person, if the identified person is in possession. §
671.201(20), Fla. Stat. (2002). "Bearer" means the person in possession of an instrument, document of
title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002).
Cc. The interest of the owner of record in the property described herein is
inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla.
1888).
d. The owner and holder of a valid recorded mortgage encumbering real
property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien
attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons,
150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v.
Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore,
the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of theDefendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg,
155 So.2d 192, 193 (Fla. 2d DCA 1963).
e. As a matter of law the entire indebtedness secured by the mortgage held
by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896
(Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963).
f. As to Defendants against whom a default has been entered, final
judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure.
g. This court must enter a summary final judgment of foreclosure where
there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to
determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134
So.2d 821 (Fla. 2d DCA 1961).
h. Where the note and mortgage so provide, a mortgagee is entitled to
recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums
advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862,
866 (Fla. 1915).
10. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest,
late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the
affidavits attached hereto.
11. NO ISSUE OF LAW _OR FACTS: The pleadings of file, together with the affidavits
attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is
entitled to Summary Final Judgment as a matter of law.
WHEREFORE, the Plaintiff respectfully requests that this Court re-establish the lost
promissory note and enter Summary Final Judgment in its favor against all Defendants as sought in its
Complaint, grant Plaintiff's motion for attorney's fees and such other and further relief as this Courtdeems just, including the issuance of writs of possession against any parties that may be in possession of
the property.
I HEREBY CERTIFY that copies of the foregoing Motion for Summary Final Judgment,
together with Affidavits referred to herein, have been mailed to the parties on the attached Service List
thisO day of , 2007.
SMITH, HIATT & DIAZ, P.A.
Attorneys for Plaintiff
PO BOX 11438
Fort Lauderdale, FL 33339-1438
Telephone: (954) 564-0071
Facsimile: (954) 564-9252
By:
Anna B. Middleton
Florida Bar No. 191329
1334-37769SERVICE LIST
Case No. 582007CA007735XXXXXX
ANGELA NISBET
18239 COASTLINE DRIVE APT. 3
MALIBU, CA 90265
MERS
C.T. Corporation System, Inc.
1200 SOUTH PINE ISLAND ROAD
PLANTATION, FL 33324
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IN THE CIRCUIT COURT FOR SARASOTA COUNTY, FLORIDA. CIVIL DIVISION CASE NO. 582007CA007735XXXXXX S$C~ AURORA LOAN SERVICES, LLC., oso Plaintiff, ge = von TS ANGELA NISBET; MORTGAGE ELECTRONIC RQom fF REGISTRATION SYSTEMS, INC., AS NOMINEE cChD ps FOR AEGIS WHOLESALE CORPORATION MIN. aay = 2 NO. 100053030007553796; UNKNOWN TENANT 680 2 & NO. 1; UNKNOWN TENANT NO. 2; and ALL SA na UT UNKNOWN PARTIES CLAIMING INTERESTS BY, THROUGH, UNDER OR AGAINST A NAMED DEFENDANT TO THIS ACTION, OR HAVING OR CLAIMING TO HAVE ANY RIGHT, TITLE OR INTEREST IN THE PROPERTY HEREIN DESCRIBED, Defendants. / MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES Plaintiff, AURORA LOAN SERVICES, LLC. (hereinafter referred to as "Plaintiff") its successors and assigns by and through its undersigned counsel, moves this Court, pursuant to Florida Rule of Civil Procedure 1.510, to enter a Summary Final Judgment against each of the Defendants in the above-styled action. There exists no genuine issues as to any material fact and Plaintiff is entitled to judgment as a matter of law based on the pleadings and affidavits filed in this action. l. FORECLOSURE: This is an action by Plaintiff, to foreclose the mortgageon real property situated in Sarasota County, Florida. 2. STANDING: Plaintiff, as servicer for the owner and acting on behalf of the owner with authority to do so, is the present designated holder of the note and mortgage with authority to pursue the present action, and is thereby entitled to enforce the instruments in accordance with F.S.A. §673.3011, - ee ~~,which provides in pertinent part that “. . . [a] person may be. . . entitled to enforce [an] instrument even though the person is not the owner of the instrument... “. Additionally, Fla. R. Civ. Pro. 1.210(a), provides in pertinent part that “every action may be prosecuted [by] a party with who or in whose name a contract has been made for the benefit of another . . . in that persons name without joining the name of the party for whose benefit the action 1s brought.” 3. DEFAULT: The Note is due for February 1, 2007, and all subsequent payments, which has resulted in a default of the note and mortgage . 4. PROPERTY: The legal description of the subject property is set forth in the complaint. 5. SERVICE: All Defendants have been served with notice of this action. 6. LOST NOTE: The original promissory note has been lost and is not in the custody or control of Plaintiff. The note was continuously in possession and control of Plaintiffs assignors and predecessors from the date of its execution until the loss of the note and has not been paid or otherwise satisfied, assigned or transferred. 7. LIEN: Plaintiff's mortgage constitutes a valid lien on the subject property and is superior to any right, title, interest or claim of all Defendants and all persons or entities claiming by, through or under them. 8. EVIDENCE: Plaintiff adopts and incorporates into this motion the affidavit of indebtedness, Plaintiffs affidavit of attorneys fees and costs, affidavit of reasonableness of fees, the mortgage, the promissory note. 9. MEMORANDUM OF LAW: The substantial matters of law upon which this motion is based are as follows: a. A mortgage is presumed to have been validly executed and delivered on the date recited in the mortgage if the mortgage is proven of record and recorded according to the law. Atlantic Land and Improvement Company v. Lee, 112 So.2d 549, 550 (Fla. 1927).b. Where a note secured by a mortgage is transferred without any formal assignment of the mortgage, the mortgage in equity passes as an incident to the debt, unless there is some plain and clear agreement to the contrary. Johns v. Gillian, 184 So. 140 (Fla. 1938). "A mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, wil! vest the equitable interest in the person to whom it is so delivered." Jd., at 143. "Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action." Chemical Residential Mortgage v. Rector, 742 So.2d. 300 (Fla. 1“ DCA, 1998), rev. denied 727 So.2d 910 (1999). To foreclose upon a promissory note, the plaintiff must be the "holder" in order to be the real party in interest. Troupe v. Redner, 652 So2d 394 (Fla 2d DCA 1995), citing Withers v. Sandlin, 36 Fla. 619, 18 So. 856 (1896); Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla 1st DCA 1966). The "holder", with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession. § 671.201(20), Fla. Stat. (2002). "Bearer" means the person in possession of an instrument, document of title, or certificated security payable to bearer or indorsed in blank. § 671.201(5), Fla. Stat. (2002). Cc. The interest of the owner of record in the property described herein is inferior and subordinate to the interest of the Plaintiff, the mortgagee. Jordan v. Sayre, 3 So. 329 (Fla. 1888). d. The owner and holder of a valid recorded mortgage encumbering real property has a lien superior in dignity and right to any subsequently recorded mortgage, claim or lien attaching to the property through the mortgagors, their successors, assigns and tenants. Lee v. Slemons, 150 So. 792, 794 (Fla. 1933); Bullard v. Fender, 192 So. 167, 171 (Fla. 1939); County of Pinellas v. Clearwater Federal Savings and Loan Association, 214 So.2d 525, 526 (Fla. 2d DCA 1968). Therefore, the lien of Plaintiff's mortgage takes priority over the subsequently recorded claims or liens of theDefendants in this action. United States v. First Federal Savings and Loan Association of St. Petersburg, 155 So.2d 192, 193 (Fla. 2d DCA 1963). e. As a matter of law the entire indebtedness secured by the mortgage held by Plaintiff is due and collectible. Van Huss v. Prudential Insurance Company of America, 165 So. 896 (Fla. 1936); Baader v. Walker, 153 So.2d 51, 54 (Fla. 2d DCA 1963). f. As to Defendants against whom a default has been entered, final judgment may be entered by the Court at any time. Rule 1.500(e) Florida Rule of Civil Procedure. g. This court must enter a summary final judgment of foreclosure where there exists no genuine issue as to any material fact; this Court may, however, reserve jurisdiction to determine the amount and priority of the claims. Mack Industries, Inc. v. Donald W. Nelson, Inc., 134 So.2d 821 (Fla. 2d DCA 1961). h. Where the note and mortgage so provide, a mortgagee is entitled to recover costs, a reasonable fee for its attorneys in the prosecution of a foreclosure action, and any sums advanced to prevent the impairment of its security. American Securities Co. v. Goldsberry, 67 So. 862, 866 (Fla. 1915). 10. ENTITLEMENT TO JUDGMENT: Plaintiff is entitled to recover its principal, interest, late charges, costs, attorneys’ fees, and other expenses, all of which are more fully set forth in the affidavits attached hereto. 11. NO ISSUE OF LAW _OR FACTS: The pleadings of file, together with the affidavits attached hereto, demonstrate that there is no dispute as to any material fact. Accordingly, Plaintiff is entitled to Summary Final Judgment as a matter of law. WHEREFORE, the Plaintiff respectfully requests that this Court re-establish the lost promissory note and enter Summary Final Judgment in its favor against all Defendants as sought in its Complaint, grant Plaintiff's motion for attorney's fees and such other and further relief as this Courtdeems just, including the issuance of writs of possession against any parties that may be in possession of the property. I HEREBY CERTIFY that copies of the foregoing Motion for Summary Final Judgment, together with Affidavits referred to herein, have been mailed to the parties on the attached Service List thisO day of , 2007. SMITH, HIATT & DIAZ, P.A. Attorneys for Plaintiff PO BOX 11438 Fort Lauderdale, FL 33339-1438 Telephone: (954) 564-0071 Facsimile: (954) 564-9252 By: Anna B. Middleton Florida Bar No. 191329 1334-37769SERVICE LIST Case No. 582007CA007735XXXXXX ANGELA NISBET 18239 COASTLINE DRIVE APT. 3 MALIBU, CA 90265 MERS C.T. Corporation System, Inc. 1200 SOUTH PINE ISLAND ROAD PLANTATION, FL 33324