IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOE MADL AND MELISSA MADL,
Appellants,
v. Case No. 5D16-53
WELLS FARGO BANK, N.A., AS
TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT RELATING
TO IMPAC SECURED ASSETS CORP.,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-2, ET
AL.,
Appellees.
________________________________/
Opinion filed December 29, 2017
Appeal from the Circuit Court
for Brevard County,
Lisa Davidson, Judge.
Beau Bowin, of Bowin Law Group, Satellite
Beach, for Appellants.
Adam Shamir, David S. Ehrlich, and Nicole
R. Topper, of Blank Rome LLP, Fort
Lauderdale, and Monika E. Siwiec, and
Manuel S. Hiraldo, of Blank Rome LLP,
Boca Raton, for Appellee, Wells Fargo
Bank, N.A., As Trustee Under the Pooling
and Servicing Agreement Relating to Impac
Secured Assets Corp, Mortgage Pass
Through Certificates, Series 2005-2.
Jacob A. Brainard, Scott C. Davis and
Michael H. Casanover, of Business Law
Group, P.A., Tampa, for Appellee, Suntree
Master Homeowners Association, Inc.
No appearance for other Appellee.
EDWARDS, J.
Joe and Melissa Madl appeal the final judgment of foreclosure entered in favor of
Appellee, Wells Fargo Bank, N.A., as Trustee under the Pooling and Servicing Agreement
Relating to Impac Secured Assets Corp, Mortgage Pass-Through Certificates, Series
2005-2. Appellants correctly assert that Wells Fargo failed to prove that it had standing
and that it gave Appellants the required notice of default. Accordingly, we reverse and
remand for the trial court to enter an order of involuntary dismissal. We also grant
Appellants’ motion for appellate attorney’s fees.
Melissa Madl executed a note and both Appellants executed a mortgage in 2005
in favor of Impac Funding Corporation. In 2006, Impac assigned the mortgage to Wells
Fargo. Also in 2006, Wells Fargo filed a foreclosure action against Appellants on the
subject note and mortgage, but it then voluntarily dismissed that case in 2007. Following
that dismissal, Deutsche Bank National Trust filed a foreclosure action against Appellants
regarding the same note and mortgage; that case was voluntarily dismissed in 2009.
Wells Fargo initiated the instant foreclosure action in April 2009, claiming in its
complaint that it was the owner and holder of the note and that it had complied with all
conditions precedent to foreclosing Appellants’ mortgage.1 The copy of the promissory
Wells Fargo’s complaint included a separate count to establish a lost note;
1
however, that count was voluntarily dismissed prior to trial.
2
GMAC that the third-party vendor should have included in a default letter. Proof that the
default letter was drafted or mentioned in the company’s notes is not sufficient. See Allen
v. Wilmington Tr., N.A.,
216 So. 3d 685, 687-88 (Fla. 2d DCA 2017). “Instead, mailing
must be proven by producing additional evidence such as proof of regular business
practices, an affidavit swearing that the letter was mailed, or a return receipt.”
Id. at 688.
Mr. Handville was unable to testify that the default notification letter had been drafted,
much less that it had been mailed first class or was actually received by Appellants. His
testimony did not prove compliance with paragraph 22 of the mortgage, as he had no
documentation from the third-party vendor that a default letter had been prepared or sent
by any means to Appellants, and he had no knowledge about the vendor’s business
practices. See Edmonds v. U.S. Bank Nat’l Ass’n,
215 So. 3d 628, 630 (Fla. 2d DCA
2017). Failure to comply with this condition precedent is an additional, independent
ground mandating reversal of the judgment. See Figueroa v. Fed. Nat’l Mortg. Ass’n,
180
So. 3d 1110, 1117 (Fla. 5th DCA 2015).
Accordingly, we reverse the judgment entered in favor of Wells Fargo and remand
the case to the trial court with instructions to enter an order of involuntary dismissal. By
a separate order, we grant Appellants’ motion for appellate attorney’s fees.
REVERSED AND REMANDED WITH INSTRUCTIONS.
ORFINGER and WALLIS, JJ., concur.
6
to prepare and mail the default letters. He could not testify that GMAC actually transmitted
the default notice data to the third-party vendor, that the third-party vendor received the
data, or that the third-party vendor actually prepared or mailed the default notice to
Appellants. He assumed, based on his interpretation of GMAC’s computerized comment
documents, that the notice had been sent; however, he admitted they were in a format
that was unfamiliar to him. The trial court denied Appellants’ motion for involuntary
dismissal as well as their post-judgment motion for rehearing. The trial court also entered
judgment in favor of Wells Fargo.
While it should be clear to all, it apparently bears repeating that the party seeking
to foreclose a mortgage must have standing at the time the complaint is filed. See
Rodriguez v. Wells Fargo Bank, N.A.,
178 So. 3d 62, 63 (Fla. 4th DCA 2015). Where the
plaintiff relies on an undated indorsement to establish its standing, it must prove that the
indorsement was made prior to the filing of the complaint and that the indorsed note was
in the plaintiff’s possession at the time the suit was filed. See McLean v. JP Morgan
Chase Bank Nat’l Ass’n,
79 So. 3d 170, 174 (Fla. 4th DCA 2012). Commonly, plaintiffs
prove this fact by attaching a copy of the note bearing the undated indorsement to the
complaint. See Ortiz v. PNC Bank, Nat’l Ass’n,
188 So. 3d 923, 925 (Fla. 4th DCA 2016).
However, in this case, the copy of the note Wells Fargo attached to its complaint lacked
the indorsement found on the original note admitted into evidence; therefore, the copy
does not prove standing at the time suit was filed. See Friedle v. Bank of N.Y. Mellon,
226 So. 3d 976, 978-79 (Fla. 4th DCA 2017). Another way to prove when an indorsement
was placed on a note is through testimony, but Wells Fargo’s witness admitted he had no
knowledge of when that indorsement was made. Furthermore, on cross-examination, Mr.
4
Handville testified that the documents he reviewed showed that, from 2007 until April
2014, GMAC, Wells Fargo, and their lawyers could not locate the original note. Five years
after the underlying suit was filed, Deutsche Bank presented the note to Ocwen, with no
explanation offered for where the “original” note had been or when and how the blank
indorsement was added.
Wells Fargo also tried to establish standing by offering a copy of an unsigned PSA
that supposedly included Appellants’ loan. It is difficult to understand how this
unexecuted document, even if properly authenticated, could establish standing or that
Appellants’ loan was included in the relevant trust. Wells Fargo failed to prove that this
document was admissible under the business records exception because it was not
created or originally maintained by Wells Fargo or Ocwen, but instead was a copy of a
printout obtained from the SEC’s website. See id. at 978. Thus, Wells Fargo’s reliance
on Deutsche Bank National Trust Co. v. Marciano,
190 So. 3d 166 (Fla. 5th DCA 2016),
and Bolous v. U.S. Bank National Ass’n,
201 So. 3d 691 (Fla. 4th DCA 2016), is
misplaced. The plaintiffs in those cases properly proved that the relevant PSAs
specifically included the loans in question, which had been transferred to the respective
plaintiffs prior to filing suit, and the PSAs were either properly admitted as business
records or the borrower failed to object to their admittance. Here, Wells Fargo’s lack of
standing mandates reversal.
Furthermore, Wells Fargo did not carry its burden of proving compliance with the
notice of default provisions contained in paragraph 22 of the mortgage. See Martins v.
PNC Bank, Nat’l Ass’n,
170 So. 3d 932, 936 (Fla. 5th DCA 2015). There was no copy of
a demand letter admitted into evidence; at best, there was a copy of text maintained by
5
GMAC that the third-party vendor should have included in a default letter. Proof that the
default letter was drafted or mentioned in the company’s notes is not sufficient. See Allen
v. Wilmington Tr., N.A.,
216 So. 3d 685, 687-88 (Fla. 2d DCA 2017). “Instead, mailing
must be proven by producing additional evidence such as proof of regular business
practices, an affidavit swearing that the letter was mailed, or a return receipt.”
Id. at 688.
Mr. Handville was unable to testify that the default notification letter had been drafted,
much less that it had been mailed first class or was actually received by Appellants. His
testimony did not prove compliance with paragraph 22 of the mortgage, as he had no
documentation from the third-party vendor that a default letter had been prepared or sent
by any means to Appellants, and he had no knowledge about the vendor’s business
practices. See Edmonds v. U.S. Bank Nat’l Ass’n,
215 So. 3d 628, 630 (Fla. 2d DCA
2017). Failure to comply with this condition precedent is an additional, independent
ground mandating reversal of the judgment. See Figueroa v. Fed. Nat’l Mortg. Ass’n,
180
So. 3d 1110, 1117 (Fla. 5th DCA 2015).
Accordingly, we reverse the judgment entered in favor of Wells Fargo and remand
the case to the trial court with instructions to enter an order of involuntary dismissal. By
a separate order, we grant Appellants’ motion for appellate attorney’s fees.
REVERSED AND REMANDED WITH INSTRUCTIONS.
ORFINGER and WALLIS, JJ., concur.
6
