NATIONSTAR MORTGAGE, LLC, AS SUCCESSOR IN INTEREST TO WELLS FARGO BANK, N. A. v. STEPHEN JOHNSON ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
NATIONSTAR MORTGAGE, LLC, )
as successor in interest to WELLS
)
FARGO BANK, N.A., )
)
Appellant, )
)
v. ) Case No. 2D17-2398
)
STEPHEN JOHNSON a/k/a )
STEPHEN L. JOHNSON a/k/a )
STEPHEN LYNN JOHNSON; )
CARRIE JOHNSON a/k/a )
CARRIE LAURA ARMSTRONG; and )
BONNIE CLAIRE LANESE JOHNSON )
n/k/a BONNIE CLAIRE LANESE, )
)
Appellees. )
)
Opinion filed June 29, 2018.
Appeal from the Circuit Court for
Manatee County; Gilbert A. Smith, Jr.,
Judge.
Nancy M. Wallace of Akerman LLP,
Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and
Eric M. Levine of Akerman LLP, West
Palm Beach, for Appellant.
Mark P. Stopa of Stopa Law Firm,
Tampa, for Appellees Stephen
Johnson and Carrie Johnson.
No appearance for remaining
Appellee.
ROTHSTEIN-YOUAKIM, Judge.
Nationstar Mortgage, LLC, as successor in interest to Wells Fargo Bank,
N.A.,1 appeals from the dismissal of a foreclosure complaint. Because the trial court
erroneously concluded that Nationstar did not have standing at the time of trial, we
reverse.
Facts
Stephen L. Johnson executed a promissory note in favor of Wells Fargo
Bank, N.A., on May 22, 2012. The note was secured by a mortgage encumbering
Johnson's real property in Manatee County, Florida. Johnson made no payments on
the note, and Wells Fargo sent Johnson a notice of default. Johnson made no attempt
to cure the default, and on April 17, 2013, Wells Fargo filed the underlying foreclosure
complaint.2 Wells Fargo attached a copy of the note, which was indorsed in blank, to
the complaint, and it filed the original blank-indorsed note and the mortgage with the
trial court in November 2013. The Johnsons answered the complaint and alleged
various affirmative defenses. Wells Fargo filed an amended complaint in September
2015, and the Johnsons filed no answer to that.
1The notice of appeal erroneously identified Wells Fargo as the
plaintiff/appellant. Nationstar subsequently moved to correct the name of the appellant.
We deemed the error a scrivener's error and granted the motion. We reject the
Johnsons' jurisdictional argument based on this error as without merit and not worthy of
further discussion.
2The complaint names Stephen Johnson and Carrie Johnson, among
others, as defendants. Carrie Johnson signed the mortgage as "non-borrower spouse"
and did not sign the note. She is identified as a defendant and/or an appellee in all
relevant pleadings.
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In December 2016, Wells Fargo filed a motion to substitute party plaintiff,
asserting that during the pendency of the foreclosure action, it had transferred the
mortgage to Nationstar and that Nationstar was now the real party in interest. Wells
Fargo attached to its motion a copy of the assignment of the mortgage. The day before
trial was to begin, Wells Fargo, still the plaintiff, moved for the court to release the
original documents that it had filed previously. Wells Fargo also moved to continue the
trial so that Nationstar could enter an appearance and request the return of the original
documents. Thus, Wells Fargo plainly contemplated that Nationstar would take physical
possession of the original note in anticipation of trial.
Trial took place on February 28, 2017. Before it began, the trial court,
over the Johnsons' objection, granted Wells Fargo's motion to substitute and granted
Wells Fargo's motion and Nationstar's oral request to release the original note and
mortgage into Nationstar's custody "for use at trial." During the trial, Nationstar then
introduced the original note into evidence through its corporate witness. Although the
Johnsons objected to the admission of the assignment of the mortgage, they did not
object to the admission of the original note and mortgage.
Relying on Geweye v. Ventures Trust 2013-I-H-R, 189 So. 3d 231 (Fla. 2d
DCA 2016), and Creadon v. U.S. Bank, N.A., 166 So. 3d 952 (Fla. 2d DCA 2015), the
Johnsons moved for an involuntary dismissal at the conclusion of Nationstar's case,
arguing that Nationstar lacked standing at trial. The trial court agreed and granted the
motion. This appeal followed.
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Discussion
We review de novo an order granting a motion for involuntary dismissal at
the close of the plaintiff's case. Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So. 3d
1173, 1175 (Fla. 2d DCA 2016) (citing Allard v. Al-Nayem Int'l, Inc., 59 So. 3d 198, 201
(Fla. 2d DCA 2011)).
On appeal, Nationstar argues that its physical possession of the original
blank-indorsed note at the beginning of the trial was sufficient to establish its standing at
trial. We agree. "A plaintiff who is not the original lender may establish standing to
foreclose a mortgage loan by submitting a note with a blank or special endorsement, an
assignment of the note, or an affidavit otherwise proving the plaintiff's status as the
holder of the note." Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA
2013). Having granted Wells Fargo's motion to substitute Nationstar as plaintiff, the trial
court, upon Wells Fargo's motion and Nationstar's pretrial request, released the original
note to Nationstar, and Nationstar introduced the note into evidence. Nationstar,
therefore, physically possessed the note at trial and had standing to foreclose at that
time as the holder of the note. See § 671.201(21)(a), Fla. Stat. (2016) (defining "holder"
as "[t]he person in possession of a negotiable instrument that is payable either to bearer
or to an identified person that is the person in possession"); see also Caraccia v. U.S.
Bank, Nat'l Ass'n, 185 So. 3d 1277, 1279 (Fla. 4th DCA 2016) ("A negotiable instrument
. . . is enforceable by the holder . . . ."); cf. Partridge v. Nationstar Mortg., LLC, 224 So.
3d 839, 841-42 (Fla. 2d DCA 2017) (reversing the final judgment and directing the trial
court to grant summary judgment in favor of the mortgagor because the original lender
had filed the original note with the trial court long before Nationstar commenced its
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foreclosure action and "Nationstar's unilateral decision to leave the original note . . .
with the trial court does not establish possession of the note"). Contrary to the
Johnsons' contention, Nationstar did not have to show that Wells Fargo had formally
transferred the note to it; Nationstar's physical possession of the blank-indorsed note
was sufficient to establish its status as the holder. Cf. § 673.3011, Fla. Stat. (2016)
(providing that even a person who wrongfully possesses a negotiable instrument may
be entitled to enforce it).
Nationstar's possession of the original note at trial distinguishes this case
from both Geweye and Creadon.3 In Geweye, JPMorgan Chase Bank, N.A., filed a
foreclosure complaint and attached copies of the blank-indorsed note and the mortgage.
Subsequently, Chase filed the original note and the original mortgage. 189 So. 3d at
232. Later, Chase transferred its interest in the mortgage to Ventures Trust, executed
an assignment of the mortgage to Ventures, and moved to substitute Ventures as the
party plaintiff. The trial court granted the substitution. Id. At trial, Ventures introduced a
copy of the assignment of mortgage. The assignment, however, did not purport to
assign any interest in the note, and there was no separate assignment of the note. Id.
at 232-33. In reversing, this court explained:
"[A] plaintiff who is not the original lender may establish
standing to foreclose a mortgage loan by submitting a note
with a blank or special [i]ndorsement, an assignment of the
note, or an affidavit otherwise proving the plaintiff’s status as
the holder of the note." Focht v. Wells Fargo Bank, N.A.,
124 So. 3d 308, 310 (Fla. 2d DCA 2013). Ventures
submitted none of these and thus failed to establish its
standing at the time of trial.
3As
Nationstar's counsel stated at trial: "That's the difference between
[Geweye] and this case. That is the exact reason why I requested the return of those
documents."
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Ventures asserted that the original note indorsed in
blank, coupled with the assignment of mortgage, provided it
with standing. However, Chase filed the original note
indorsed in blank with the court long before Ventures was
substituted as the party plaintiff. As such, Ventures could
not establish that it was the holder or nonholder in
possession for purposes of standing. See Creadon v. U.S.
Bank, N.A., 166 So. 3d 952, 954 (Fla. 2d DCA 2015).
Further, Ventures failed to explain how the assignment of
mortgage, reflecting only the transfer of the mortgage and
not the note, provided it with standing; nothing in the
assignment of mortgage conferred standing on Ventures to
enforce the note.
Id. at 233 (second alteration in original).
In Creadon, Thornburg Mortgage Home Loans, Inc., filed a foreclosure
complaint in which it alleged that it owned the note. 166 So. 3d at 953. Later,
Thornburg filed the original mortgage and note with the court. Years later, U.S. Bank
moved to substitute itself for Thornburg as the plaintiff, claiming that it was the holder of
the note as a successor trustee to Bank of America, which had purchased the note and
mortgage from Thornburg's bankruptcy estate. In holding that U.S. Bank had failed to
establish standing as the holder of the note, this court explained:
The issue here is whether U.S. Bank presented sufficient
evidence to warrant its substitution as plaintiff and to prove
that it had standing to enforce the note and mortgage. It did
not introduce the assignment of mortgage . . . or any other
assignment, into evidence. It proceeded solely on the theory
that it was the holder of the note and thus had the right to
foreclose the loan.
. . . An entity can establish standing to foreclose a
note secured by a mortgage by showing that it is the holder
of the note or a nonholder in possession of the note who has
the rights of a holder. Creadon’s original note had been filed
in the registry of the court years before U.S. Bank appeared
in the suit. Therefore, U.S. Bank simply could not have been
holding the note or been a nonholder in possession with
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standing to foreclose the mortgage.
Id. at 954 (footnote omitted) (citations omitted).
Here, not only did Nationstar establish itself as the holder of the note at
the time of trial, but contrary to the Johnsons' tipsy coachman argument, Wells Fargo
had standing to foreclose when it filed the original complaint: the copy of the blank-
indorsed note that Wells Fargo attached to its original complaint was identical to the
original note that it subsequently filed with the court and was the very same note that
Nationstar later introduced at trial. See U.S. Bank, N.A. for Truman 2012 SC2 Title Tr.
v. Glicken, 228 So. 3d 1194, 1196 (Fla. 5th DCA 2017) ("When the note with an
undated blank indorsement has been attached to the original complaint, this is sufficient
to prove standing provided that the plaintiff produces the original note at trial or files it
with the trial court with the same indorsement and there are no subsequent
contradictory indorsements."); cf. Nationstar Mortg., LLC, v. Bo Chan, 226 So. 3d 330,
332 (Fla. 5th DCA 2017) ("[A]s the substitute plaintiff, Appellant 'stands in the shoes of
the original plaintiff/mortgagee' and 'acquires the standing (if any) of the original plaintiff
at the time the case was filed.' " (quoting Sandefur v. RVS Capital, LLC, 183 So. 3d
1258, 1260 (Fla. 4th DCA 2016))).
Because Wells Fargo had standing to foreclose when it filed the complaint
with a copy of the blank-indorsed note attached, and Nationstar established standing in
its own right by physically possessing the original blank-indorsed note at the beginning
of the trial and entering it into evidence, the trial court erred in granting the Johnsons'
motion for involuntary dismissal. Accordingly, the final judgment of dismissal is
reversed, and this case is remanded for further proceedings.
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Reversed and remanded.
VILLANTI and SLEET, JJ., Concur.
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