By: Matt Weidner
The first DCA today released a bombshell case which adopts the position that our firm has taken for years.
In Lindsey v. Wells Fargo Bank, 1D12-2406 (1st DCA 2013), the lower court granted summary judgment based on an Assignment that did not purport to transfer the Note. There was no indorsement on the note. The first DCA reversed the lower court and vacated the judgment because the Plaintiff failed to establish that it was the holder of the note and mortgage at the time the foreclosure complaint was filed.
We have all been trained to cite Johns v. Gillian and language that the mortgage follows the note in equity absent some intent otherwise.Lindsey tells us that if an assignment is made without the note, the note does not follow the mortgage. Thus an important question is raised: At what point can the note and mortgage become so separated as to prevent the holder of the note from foreclosing on a mortgage?