(This post is no longer current. The Third Circuit reversed its opinion in Bennett and held that authority is self-authenticating. For more on the revised opinion, please see our updated post .)
By: Douglas L. Waldorf, Jr. & Scott St. Amand
Establishing the authority to foreclose a note and mortgage is simple when the note and mortgage are held by the original lender. In today’s world, banking institutions often seek to enforce notes and mortgages which have been endorsed in their favor from the original lender, either directly or through any number of intermediaries.
Bennett v. Deutsche Bank Nat’l Trust Co. , a recent decision out of Florida’s Fourth DCA clarified the 2010 holding in Riggs v. Aurora Loan Services, LLC , in which the same court held that an endorsement on a note was self-authenticating pursuant to Florida Statute § 90.902(8). In Bennett the lender sought a summary final judgment of foreclosure, alleging that it possessed the authority to enforce the note and mortgage based upon two allonges that it filed with the foreclosure complaint. The first allonge contained an endorsement from the original lender to an intermediate holder of the note, and the second allonge contained an endorsement from the intermediate holder to the foreclosing lender. Importantly, both allonges were signed by the same individual.
In response to the bank’s foreclosure complaint, the defendants argued in their affirmative defenses that the endorser of both allonges lacked the authority to sign on behalf of the endorsing entities. The lender moved for summary judgment, relying on Riggs to argue that the signatures on the allonges were self-authenticating. However, the Court found that the issue of authentication or authority to endorse had not been raised in Riggs thus making that decision distinguishable.