HARRINGTON et al v. WELLS FARGO BANK NA et al

Filing 62

ORDER granting 45 Motion for Summary Judgment. The Clerk is directed to close the case. Signed by JUDGE RICHARD SMOAK on 10/1/2012. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
CYRUS R. HARRINGTON, III and
MARCELA HARRINGTON,
Plaintiffs,
v.

CASE NO. 3:11-cv-00448-RS-CJK

WELLS FARGO BANK, N.A.,
JPMORGAN CHASE BANK, N.A.;
And ALL PERSONS claiming an interest by,
Through, under, or against a named defendant,
Defendants.
_________________________________________/
ORDER
Before me are Wells Fargo and Chase’s Motion for Summary Judgment
(Doc. 45), Plaintiffs’ Response (Doc. 48), and Wells Fargo and Chase’s Reply
(Doc. 61).
This is an action for quiet tile and cancellation of the note and mortgage on
Plaintiffs’ property, which was executed in 2005 in favor of Washington Mutual
Bank, F.A. (“WaMu”). In their motion for summary judgment, Wells Fargo and
Chase argue that they hold the original mortgage and original note, endorsed in
blank by WaMu, and are thus entitled to foreclose on the mortgage. In their
response, Plaintiffs argue that the note is not a negotiable instrument, so Wells
Fargo and Chase’s possession of it is insufficient to prove any ownership interest.

In their Statement of Disputed Material Facts (Doc. 49), Plaintiffs moved the
court for an extension of time in which to respond so that discovery would allow
them to develop factual evidence to oppose the motion to dismiss. Plaintiffs’
argued (i) that they “anticipate[d] that a forensic document examination of the note
and mortgage [would] establish that those documents are, in fact, not originals;”
(ii) “that discovery [would] show that the endorsement on the note produced by the
bank is most likely a computer-generated stamp;” and (iii) that “[a]bsent discovery
. . . the chain of title and current ownership of [the] note [could not] be resolved.”
Doc. 49, ¶¶ 2-4. In my Order dated July 11, 2012 (Doc. 52), I granted Plaintiffs’
request and allowed them until September 19, 2012, which was fourteen days after
the discovery deadline, to respond to the motion for summary judgment.1 Plaintiffs
did not take this opportunity. Accordingly, there appear to be no material facts that
are in dispute.
Further, no appellate decision from Florida cited in Plaintiffs’ original
response stands for the proposition that ordinary mortgage promissory notes are
not negotiable instruments. The cases I have examined all hold the opposite. See,
e.g., Harvey v. Deutsche Bank Nat. Trust Co., 69 So. 3d 300, 303 (Fla. 4th Dist. Ct.
App. 2011) review denied, SC11-1909, 2012 WL 2890875 (Fla. July 13, 2012)
(holding that a bank’s “‘possession of the original note, indorsed in blank, was

1

In fact, I ordered that Plaintiffs “shall” respond, not that Plaintiffs “may” respond.

sufficient under Florida’s Uniform Commercial Code to establish that it was the
lawful holder of the note, entitled to enforce its terms. The note was a negotiable
instrument subject to the provisions of Chapter 673, Florida Statutes’” (quoting
Riggs v. Aurora Loan Services, LLC, 36 So. 3d 932, 933 (Fla. 4th Dist. Ct. App.
2010)); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618, 622 (Fla. 5th Dis.
Ct. App. 2010) (noting that “a promissory note is a negotiable instrument”); Perry
v. Fairbanks, 888 So. 2d 725, 727 (Fla. 5th Dist. Ct. App. 2004) (holding that a
“promissory note is clearly a negotiable instrument within the definition of [the
applicable Florida Statute]”).
Accordingly, the note is a negotiable instrument, and there are no genuine
issues of material fact for this court to resolve. Wells Fargo and Chase’s Motion
for Summary Judgment (Doc. 45) is GRANTED. The Clerk is directed to close
the case.

ORDERED on October 1, 2012.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE