Sherman Balch and Annmarie Balch v. LaSalle Bank, N.A. ( 2015 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    SHERMAN BALCH and ANNMARIE BALCH,
    Appellants,
    v.
    LASALLE BANK N.A., as Trustee for Washington Mutual Mortgage Pass-
    through Certificates WMART Series 2006-5 Trust,
    Appellee.
    No. 4D14-2057
    [June 17, 2015]
    Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
    Martin County; James W. McCann, Judge; L.T. Case No. 2008 CA-726.
    Sherman Balch and AnnMarie Balch, Palm City, pro se.
    Jeffrey T. Kuntz and Thomas H. Loffredo of GrayRobinson, P.A., Fort
    Lauderdale, and Maureen A. Vitucci and John M. Brennan, Jr., of
    GrayRobinson, P.A., Tallahassee, for appellee.
    STEVENSON, J.
    Sherman and AnnMarie Balch (collectively, “Homeowners”) appeal a
    final judgment of foreclosure entered in favor of LaSalle Bank N.A.
    (“LaSalle Bank”). We find the trial court erred in finding LaSalle Bank had
    standing at the time it initiated the foreclosure complaint, and accordingly
    reverse and remand for further proceedings.
    Facts
    LaSalle Bank filed its complaint in March of 2008. It sought to foreclose
    on the mortgage and to re-establish a lost note. LaSalle Bank attached to
    this complaint a copy of the mortgage and a copy of the note. The note
    listed American Home Mortgage as the lender and contained no
    indorsements. Close to three months later, LaSalle Bank filed the original
    note. The original note contained an undated special indorsement from
    American Home Mortgage to Washington Mutual Bank.
    LaSalle Bank called one witness at trial. The witness worked for JP
    Morgan Chase Bank, the servicer for Homeowners’ loan. He explained that
    Homeowners’ loan was part of a pooling and servicing agreement (“PSA”)
    that came into existence in June of 2006. The PSA listed WaMu
    Acceptance Corporation as the depositor, Washington Mutual Bank as the
    servicer, and LaSalle Bank National Association as the trustee for the
    trust. Relying on the cut-off date for the trust, the witness testified that
    Homeowners’ loan was transferred into the trust on or around June 29,
    2006.
    As it pertains to the note, the witness never specified when the special
    indorsement was placed onto the original note. LaSalle Bank also
    introduced into evidence a copy of an assignment, dated April 3, 2008,
    which assigned MERS’ interest in the mortgage and note to LaSalle Bank.
    MERS was not a party to the PSA.
    Homeowners moved for an involuntary dismissal, arguing LaSalle failed
    to prove standing. The trial court denied the motion and entered final
    judgment of foreclosure in favor of LaSalle Bank.
    Analysis
    “We review the sufficiency of the evidence to prove standing to bring a
    foreclosure action de novo.” Lloyd v. Bank of New York Mellon, 
    160 So. 3d 513
    , 514 (Fla. 4th DCA 2015). Here, LaSalle Bank did not provide
    sufficient evidence that it had standing at the time it filed the foreclosure
    complaint.
    First, there was no evidence indicating when the special indorsement
    in favor of Washington Mutual Bank was placed onto the note. See McLean
    v. JP Morgan Chase Bank Nat’l Ass’n, 
    79 So. 3d 170
    , 174 (Fla. 4th DCA
    2012) (“Where the plaintiff contends that its standing to foreclose derives
    from an endorsement of the note, the plaintiff must show that the
    endorsement occurred prior to the inception of the lawsuit.”). Secondly,
    the assignment is insufficient to establish standing, as the assignment was
    executed after the complaint was filed. See Rigby v. Wells Fargo Bank,
    N.A., 
    84 So. 3d 1195
    , 1195–96 (Fla. 4th DCA 2012) (reversing entry of final
    summary judgment because the bank failed to establish it had standing
    to foreclose when the evidence showed the assignment was dated one day
    after the complaint was filed). Finally, evidence that the note was
    transferred into the PSA prior to the foreclosure action is insufficient by
    itself to confer standing because there was no evidence that the depositor
    under the PSA had the intent to transfer any interest to the trustee. See
    Jelic v. LaSalle Bank, Nat’l Ass’n, 
    160 So. 3d 127
    , 130 (Fla. 4th DCA 2015)
    (reversing a final judgment of foreclosure, in part because there was no
    evidence that the party transferring the note into a PSA had any intent to
    transfer an interest to the trustee).
    2
    Based on the foregoing, we reverse and remand for entry of an order of
    involuntary dismissal of the action. See Sosa v. U.S. Bank Nat’l Ass’n, 
    153 So. 3d 950
    , 952 (Fla. 4th DCA 2014) (reversing and remanding for entry of
    an order of involuntary dismissal when the bank failed to provide sufficient
    evidence of its standing).
    Reversed and remanded.
    GERBER and LEVINE, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    3
    

Document Info

Docket Number: 4D14-2057

Filed Date: 6/17/2015

Precedential Status: Precedential

Modified Date: 7/30/2015