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USFN 25th Anniversary

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With increased frequency, the necessity to prove chain of title is being raised in foreclosure actions. Although there is law to support the non-requirement of assignments of mortgage prior to filing a complaint, in many instances it is a specific judge’s “rule” that the plaintiff allege and prove chain of title into the current plaintiff’s name before the court will enter any final summary judgment.

 

In particular, Florida judges and opposing counsel alike often scrutinize and question how the named plaintiff came to own the note and mortgage in order to support the allegations of the complaint. To effectively prove its chain of title, a plaintiff must show assignments of mortgage that take the ownership of the note and mortgage from origination through complaint filing. Any gaps or misnamed assignments will create an issue.

 

Florida case law states that as long as the assignment of mortgage indicates that the beneficial interest in the note was transferred prior to the initiation of the foreclosure action, a plaintiff’s complaint will survive attack even if the assignment is recorded subsequent to the foreclosure complaint [WM Specialty Mortgage, LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA, 2004)]. However, many lenders fail to state the date upon which the beneficial interest/ownership in the mortgage was transferred to the assignee on the face of the assignment. In this regard, it is critical that lenders make every effort to place this information on any assignment of mortgage they prepare directly (as opposed to those prepared by a law firm).

 

Moreover, when the law firm is unable to obtain judgment without providing chain of title, it is imperative that the lender make every effort to timely return fully-executed assignments of mortgage to counsel, including all specific recording information of the assigned mortgage. As a notarized document, an assignment of mortgage cannot be written upon or otherwise modified by local counsel. Thus, ensuring full, complete, and accurate execution of an assignment prior to sending it to counsel can reduce unnecessary delays in prosecution of the foreclosure.

 

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