CARTY v. BANK OF AMERICA (2017)

Gaston CARTY and Marlene J. Carty, Appellants, v. BANK OF AMERICA, N.A., Appellee.

No. 4D16–635

Decided: March 08, 2017

Anthony J. Badway and Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellants. Adam M. Topel of Liebler Gonzalez & Portuondo, Miami, for appellee.

We reverse the summary final judgment of foreclosure because a genuine issue of material fact was created by the two different versions of the note filed by the appellee bank. Attached to the original complaint was a copy of the original note which contained three indorsements on the last page of the note. Attached to the amended complaint and to the summary judgment motion was a purported copy of the original note which contained two indorsements on the last page of the note and a third indorsement on an allonge. Appellants' amended answer raised lack of standing as an affirmative defense and challenged the validity of the allonge. In support of its motion for summary judgment, the bank neither addressed the discrepancy between the notes nor countered the lack of standing defense.

Reversed and remanded.

PER CURIAM.

Gross, May and Damoorgian, JJ., concur.

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