Rosanie Joseph v. BAC Home Loans Servicing, LP , 2015 Fla. App. LEXIS 154 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROSANIE JOSEPH,
Appellant,
v.
BAC HOME LOANS SERVICING, LP,
Appellee.
No. 4D12-4137
[January 7, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana Lewis, Judge; L.T. Case No. 502009CA025638.
Andrea H. Duenas of Law Office of A. Duenas, P.A., Lantana, and Brian
K. Korte of Korte & Wortman, P.A., West Palm Beach, for appellant.
J. Randolph Liebler and Tricia J. Duthiers of Liebler, Gonzalez &
Portuondo, Miami, for appellee.
WARNER, J.
A homeowner appeals a final judgment of foreclosure, arguing that the
note and mortgage holder failed to prove its standing to foreclose at the
time of the filing of the complaint. We agree that the plaintiff produced no
evidence to show that it owned the note or mortgage on the date of the
filing of the complaint. We thus reverse.
The homeowner executed a note and mortgage to Key Mortgage
Associates in 2008. On July 21, 2009, Taylor, Bean & Whitaker Mortgage
Corporation filed its complaint for foreclosure and attached the mortgage,
but no note or assignments. Taylor Bean claimed the note was lost or
stolen and sought to establish its terms. It alleged, however, that it owned
the note. Subsequently, Taylor Bean transferred the note and mortgage
to BAC Home Loans Servicing, LP and BAC was substituted as the party
plaintiff into the foreclosure suit. The homeowner filed an answer alleging
a lack of standing to file the foreclosure complaint.
After BAC dropped the count to reestablish the lost note, the parties
proceeded to trial where BAC produced the original note and mortgage
which contained the name of Key Mortgage Associates as the lender. There
were no assignments entered into evidence. The note in evidence
contained two endorsements on the last page. The first stated “pay to the
order of Taylor, Bean & Whitaker Mortgage Corp.” and was signed by Erica
Carter-Shaw as attorney-in-fact for Key Mortgage Associates. The second
was an endorsement in blank also signed by Erica Carter-Shaw as “E.V.P.”
of Taylor Bean. Importantly, neither of the endorsements on the note was
dated. BAC’s representative testified at trial that he had no knowledge
when the endorsements were signed and placed on the note. At the close
of the plaintiff’s case, the homeowner moved for involuntary dismissal,1
contending that BAC had failed to prove the standing of Taylor Bean on
the date the complaint was filed. The trial court denied the motion. After
presentation of the defense, the court entered final judgment of foreclosure
for BAC. From this judgment, the homeowner appeals.
A party must establish its standing to bring a mortgage foreclosure
complaint by establishing an assignment or equitable transfer of the note
and mortgage prior to instituting the complaint. McLean v. JP Morgan
Chase Bank, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). Whether a party
has standing to bring an action is a question of law to be reviewed de novo.
Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14, 16 (Fla.
4th DCA 2012).
The trial court erred in denying the motion for directed verdict, as BAC
failed to prove that Taylor Bean had standing to bring the foreclosure
proceeding on the date it filed the complaint. It did not present any
evidence of when Taylor Bean came into possession of the note. In McLean,
we pointed out that standing is determined at the time the lawsuit is filed.
79 So. 3d at 173. We explained that if a note does not name the plaintiff
as payee, then it must bear a special endorsement in favor of the plaintiff
or a blank endorsement. Id. Alternatively, the plaintiff may submit
evidence of an assignment from the payee to the plaintiff or proof of
ownership to show its status as a holder of the note. Id. Even where an
assignment of mortgage occurs after suit is filed, the plaintiff may establish
standing to foreclosure at the inception of the suit by showing that the
endorsement of the note occurred prior to the inception of the suit. Id. at
174. If the note or allonge shows on its face that the endorsement occurred
before the filing of the complaint, that is sufficient. Moreover, if the note
1 Actually, the attorney moved for directed verdict, but the proper name for a
motion in a non-jury trial is a motion for involuntary dismissal. Fla. R. Civ. P.
1.420(b).
2
and mortgage are assigned, an equitable transfer may have occurred so
that standing may be conferred.
In this case, however, BAC offered no proof as to when Taylor Bean was
assigned the note and mortgage. The endorsement on the note was
undated, no assignments of mortgage were introduced, and the bank
representative had no knowledge of when Taylor Bean acquired the note
and mortgage. Although BAC argues that its predecessor, Taylor Bean,
had standing under section 673.3011(2), Florida Statutes, to enforce a
negotiable instrument, we disagree that it proved such standing. That
section allows enforcement by a “nonholder in possession of the
instrument who has the rights of a holder.” Even assuming Taylor Bean
was a loan servicer (as opposed to an owner of the note, as it alleged in its
complaint), BAC still failed to prove that Taylor Bean acquired possession
of the note prior to the filing of the foreclosure complaint.
Without proof of standing, BAC failed to prove its entitlement to
foreclose as of the date of the filing of the complaint. The trial court erred
in failing to direct involuntary dismissal of the complaint at the close of
BAC’s case. We reverse for the trial court to enter such a dismissal.
Reversed and remanded with directions to vacate the final judgment
and enter a dismissal of the complaint.
TAYLOR and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3