NEW TREND DEVELOPINGING IN FLORIDA AFFECTING NON-CONVENTIONAL | KEY POINTS
- diazanselmo
- Jan 24, 2024
- 2 min read
Updated: Mar 20
A local circuit court in Broward County recently granted summary judgment for the borrower’s estate in a proceeding to foreclose a Home Equity Loan Conversion Loan Agreement (“reverse mortgage” and/or “Note”) finding a subsequent assignee of the original lender failed to demonstrate it had standing to foreclose the mortgage which secured the Note. Bank of New York Mellon Trust Co., N.A., as Trustee for Mortgage Assets Management Series I Trust (“BONY”) Timothy M. Ryan, as Personal Representative of the Estate of Kurt Ely, Deceased, 17th Cir. Court Broward County, Case No. CACE22000905.
Benchmark Mortgage Corporation (“Benchmark”) entered into a reverse mortgage with Kurt Ely who subsequently passed away. The loan was transferred multiple times and eventually came to be owned by BONY which initiated an action to foreclose and re-establish the lost Note. The estate’s representative, Ryan, responded to the foreclosure complaint, asserted an affirmative defense of lack of standing and moved for summary judgment on BONY’s alleged lack of standing. Despite having ample time to oppose summary judgment, BONY failed to file any written opposition to the motion and the court entered judgment in Ryan’s favor finding a broken chain of assignments and BONY’s lost note affidavit legally insufficient to defeat summary judgment.
The take-away from this judgment is that a defensive summary judgment motion should be taken seriously and responded to in writing after careful consideration of its merits and the facts of the case. In lost note cases the issue of standing is generally more complex and is further complicated when the loan instrument is non-negotiable. Since the prevailing party in this action was the estate of the debtor, another noteworthy issue is whether an estate has the right to recover attorneys’ fees based on the reciprocity of the fee provisions in the Note and mortgage. The court retained jurisdiction to make that determination. Stay tuned for developments on these important and recurring issues.
