NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WELLS FARGO BANK, N.A. as Trustee for
)
the Certificate Holders of Banc of America
)
Mortgage 2007-1 Trust, Mortgage Pass-
)
Through Certificates, Series 2007-1,
)
)
Appellant, )
)
v. ) Case No. 2D17-3913
)
RANDOLPH V. COOK; DEBORAH COOK; )
CONNERTON COMMUNITY COUNCIL, )
INC.; and BANK OF AMERICA, N.A., )
)
Appellees. )
)
Opinion filed July 26, 2019.
Appeal from the Circuit Court for Pasco
County; Gregory G. Groger, Judge.
Monica L. Haddad Forbes, Sara F.
Holladay-Tobias, Emily Y. Rottmann, and
Brittney Lauren Difato of McGuireWoods
LLP, Jacksonville, for Appellant.
Mark P. Stopa of Stopa Law Firm, Tampa
(withdrew after briefing), for Appellees
Randolph V. Cook and Deborah Cook.
No appearance for remaining Appellees.
BLACK, Judge.
Wells Fargo Bank, N.A., as Trustee for the Certificate Holders of Banc of
America Mortgage 2007-1 Trust, Mortgage Pass-Through Certificates, Series 2007-1,
challenges the trial court's final order dismissing its foreclosure lawsuit against
Randolph Cook and Deborah Cook at the close of Wells Fargo's case-in-chief. Wells
Fargo contends—and we agree—that the trial court erred in granting the Cooks' motion
for involuntary dismissal. Thus, we reverse the order of dismissal and remand for
further proceedings.
In April 2010, Wells Fargo filed its complaint for foreclosure against the
Cooks. In its complaint, Wells Fargo alleged that the Cooks had executed a note and
mortgage in September 2006 in favor of Wells Fargo's predecessor in interest; copies of
the note and mortgage in favor of Bank of America, N.A., were attached to the
complaint. Wells Fargo also alleged that it was entitled to bring the foreclosure action,
and a copy of the February 27, 2007, assignment of mortgage, which also assigned the
note, was attached to the complaint.
During the course of litigation, and after the denial of the Cooks' motion to
dismiss based on Wells Fargo's alleged lack of standing and failure to comply with the
default notice requirements of paragraph 22 of the mortgage, the Cooks filed an answer
and affirmative defenses. The affirmative defenses included, as relevant to the
resolution of this appeal, Wells Fargo's lack of standing.
Prior to trial Wells Fargo filed the original note and mortgage with the
court. The original note bears a special indorsement from Bank of America to Wells
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Fargo.1 However, the indorsement is not dated, and it does not appear on the copy of
the note attached to Wells Fargo's complaint.2
In September 2016, after filing the original note and mortgage, Wells
Fargo filed a memorandum of law in response to the Cooks' affirmative defenses. In
that memorandum, Wells Fargo alleged:
Plaintiff has proper standing to bring the instant action.
Plaintiff was in possession of the original Note at the time of
filing its complaint. Further, the original Note has a special
indorsement to Plaintiff. These facts make Plaintiff the
proper holder and give it the right to enforce the Note and
Mortgage. . . . Being the holder of a negotiable instrument is
all that is necessary for a party to have standing to enforce it.
1The indorsement is in favor of Wells Fargo, N.A., as trustee for the
holders of the Banc of America Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2007-1. We note this only to point out that although "the trust
identified in the complaint is somewhat different than the trust identified in the special
[i]ndorsement," this difference "does not create a defect in standing." See Bank of N.Y.
Mellon Tr. Co., Nat'l Ass'n v. Ginsberg,
221 So. 3d 1196, 1197 (Fla. 4th DCA 2017); see
also Deutsche Bank Tr. Co. Ams., as Tr. for Residential Accredit Loans, Inc. v. Harris,
264 So. 3d 186, 190 (Fla. 4th DCA 2019) ("We agree with the Bank that an indorsement
to a trustee is sufficient to establish standing to foreclose, in terms of the identity of the
person or entity entitled to enforce the note, regardless of whether the identity of the
trust is clear from note, together with any indorsements or allonges.").
2Thus, the holding of Ortiz v. PNC Bank, National Ass'n, 188 So. 3d 923,
925 (Fla. 4th DCA 2016), is inapplicable. However, the lack of an indorsement on the
copy of the note attached to the complaint, as compared to the original note filed prior to
trial, did not prevent Wells Fargo from establishing standing through other evidence.
"[A] plaintiff can submit 'an assignment from payee to the plaintiff or an affidavit of
ownership proving its status as holder of the note' to establish standing." Floyd v. Bank
of Am., N.A.,
194 So. 3d 1071, 1074 (Fla. 5th DCA 2016) (quoting Rigby v. Wells Fargo
Bank, N.A., for Option One Mortg. Loan Tr. 2007-FXD2 Asset-Backed Certificates,
Series 2007-FXD2,
84 So. 3d 1195, 1196 (Fla. 4th DCA 2012)); see also Focht v. Wells
Fargo Bank, N.A.,
124 So. 3d 308, 310 (Fla. 2d DCA 2013); Bolous v. U.S. Bank Nat'l
Ass'n, For Credit Suisse First Boston Mortg. Sec. Corp.,
210 So. 3d 691, 693 (Fla. 4th
DCA 2016); McLean v. JP Morgan Chase Bank Nat'l Ass'n,
79 So. 3d 170, 173 (Fla. 4th
DCA 2012).
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On August 23, 2017, more than a year after Wells Fargo filed the original
note and mortgage and almost a year following its memorandum contending that it was
entitled to bring the foreclosure action as the holder of the note, a nonjury trial was held.
At trial, Wells Fargo asserted that it would prove its standing as the holder
of the note. To do so, Wells Fargo presented the testimony of a litigation resolution
analyst employed by Nationstar Mortgage, LLC, the then-current servicer of the note.
The witness was previously employed by Bank of America and testified regarding Bank
of America's business practices, including securitization and onboarding documents. In
addition to this witness's testimony, the original note, mortgage, and assignment of
mortgage and note were introduced into evidence. In order to prove its compliance with
the default notice requirements of paragraph 22 of the mortgage, Wells Fargo elicited
testimony from the Nationstar employee and introduced a copy of the default notice into
evidence.
At the conclusion of Wells Fargo's case-in-chief, the Cooks moved for an
involuntary dismissal. The Cooks argued that Wells Fargo had failed to state a cause of
action, based on the presumption that Wells Fargo was proceeding as an owner of the
note; failed to prove standing at inception, again premised on the idea that Wells Fargo
was an owner but not a holder or in possession of the note; and failed to prove
compliance with paragraph 22 of the mortgage, based upon allegedly erroneous
amounts due included in the notice. Following extensive argument from the parties, the
court granted the Cooks' motion as to the latter two arguments, finding that there were
"too many issues regarding standing, regarding the default letter" and that "general
practice" testimony was "not sufficient," despite also stating that the court had an
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assignment of mortgage and "testimony that says that the [i]ndorsement which was part
of conveying ownership to Wells Fargo was done." Wells Fargo appeals from the
court's order granting dismissal.
An order granting a motion for involuntary dismissal is reviewed de novo.
Allard v. Al-Nayem Int'l, Inc.,
59 So. 3d 198, 201 (Fla. 2d DCA 2011). "When a party
raises a motion for involuntary dismissal in a nonjury trial 'the movant admits the truth of
all facts in evidence and every reasonable conclusion or inference based thereon
favorable to the non-moving party.' " Deutsche Bank Nat'l Tr. Co. for Harborview Mortg.
Loan Tr. 2006-8 v. Kummer,
195 So. 3d 1173, 1175 (Fla. 2d DCA 2016) (emphasis
added) (quoting Day v. Amini,
550 So. 2d 169, 171 (Fla. 2d DCA 1989)). Here, the trial
court erred in granting the motion to dismiss as to each of the theories argued by the
Cooks.
Wells Fargo correctly asserts on appeal that it sufficiently established its
standing at inception, rendering the court's dismissal on that basis erroneous. "A
plaintiff may prove that it has standing to foreclose 'through evidence of a valid
assignment, proof of purchase of the debt, or evidence of an effective transfer.' " Stone
v. BankUnited,
115 So. 3d 411, 413 (Fla. 2d DCA 2013) (quoting BAC Funding
Consortium Inc. ISAOA/ATIMA v. Jean-Jacques,
28 So. 3d 936, 939 (Fla. 2d DCA
2010)). The assignment of mortgage attached to the complaint and introduced into
evidence at trial assigned and transferred all interest in the mortgage—together with the
note—from Bank of America to Wells Fargo, and the assignment predated the filing of
the complaint by more than three years. Moreover, the complaint sufficiently alleged
that Wells Fargo had standing to bring the action as the entity entitled to enforce the
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note. See § 673.3011, Fla. Stat. (2010) (defining "person entitled to enforce" to include
"[t]he holder of the instrument").3 Nonetheless, at trial, Wells Fargo also moved to
amend the complaint to conform to the evidence to the extent that it was necessary to
do so; in so moving, Wells Fargo argued that the Cooks could not be prejudiced by the
amendment because they had been aware for at least a year prior to the trial that Wells
Fargo was proceeding as the holder of the note.4 The court inquired into how the
Cooks would be prejudiced by an amendment, and the response from the Cooks
addressed only the issue of the note's indorsement. However, the indorsement being
undated is ultimately irrelevant in this case because the assignment of mortgage and
note establishes Wells Fargo's standing at inception.5
Dismissal based on the alleged failure to comply with the paragraph 22
notice requirement was also in error. To the extent that the issues raised by the Cooks
with regard to mailing and substantial compliance were not waived, see PHH Mortg.
3We note that section 702.015, Florida Statutes, and Florida Rule of Civil
Procedure 1.115, establishing pleading requirements and certifications related to a
plaintiff's entitlement to enforce a note, became effective after the filing of the complaint
in this case, in 2013 and 2014, respectively. See ch. 2013-137, § 3, Laws of Fla.
(2013); In re Amendments to Fla. Rules of Civil Procedure,
153 So. 3d 258 (Fla. 2014).
4The record clearly supports Wells Fargo's assertion that the Cooks were
aware of Wells Fargo's theory of entitlement to enforce the note. Foreclosure is an
action in equity, and there is nothing equitable about dismissing a foreclosure complaint
where sufficient evidence of standing is presented and the undisputed facts establish
that the borrowers executed the note and mortgage yet made no payments, or even
attempted to make payments, on their note and mortgage for more than a year prior to
the filing of the foreclosure complaint.
5Wells Fargo asserts an additional issue, the trial court's exclusion of the
Pooling and Servicing Agreement (PSA), as a basis for reversal. Because the purpose
of introducing the PSA was to further establish Wells Fargo's standing and standing was
otherwise sufficiently established, requiring reversal, we decline to address this
evidentiary issue.
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Corp. v. Parish,
244 So. 3d 338, 339 (Fla. 2d DCA 2018); Young v. Nationstar Mortg.,
LLC,
205 So. 3d 790, 791-92 (Fla. 2d DCA 2016), the evidence presented at trial by
Wells Fargo was sufficient to establish substantial compliance with the requirements of
paragraph 22 of the mortgage.
Although the court did not include in its findings for dismissal that Wells
Fargo failed to prove that the default notice was mailed to the Cooks in compliance with
paragraph 22, because the issue was raised as a basis for dismissal and not expressly
determined by the trial court, we address it. The paragraph 22 notice and Bank of
America's servicing notes were properly introduced into evidence. See Allen v.
Wilmington Tr., N.A.,
216 So. 3d 685, 687 (Fla. 2d DCA 2017). And the litigation
resolution analyst who had previously worked for Bank of America testified as to his
training with Bank of America and to his personal knowledge of Bank of America's
general practices with regard to creating and mailing default notices. Wells Fargo
presented sufficient evidence regarding the regular business practices of Bank of
America, the servicer of the mortgage at the time the paragraph 22 letter was created
and mailed, to establish a rebuttable presumption of mailing. See Thorlton v. Nationstar
Mortg., LLC,
257 So. 3d 596, 601-02 (Fla. 2d DCA 2018) (affirming final judgment of
foreclosure where Nationstar sufficiently established mailing of the paragraph 22 notice
based on the testimony at trial where the witness testified to his personal knowledge of
routine practices of the entity that mailed the notice); PNC Bank Nat'l Ass'n v. Roberts,
246 So. 3d 482, 486 (Fla. 5th DCA 2018).
As to the adequacy of the content of the paragraph 22 notice and
specifically the amounts included in the notice, "when the content of a lender's notice
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letter is nearly equivalent to or varies in only immaterial respects from what the
mortgage requires, the letter substantially complies, and a minor variation from the
terms of paragraph twenty-two should not preclude a foreclosure action." Fed. Nat'l
Mortg. Ass'n v. Morton,
196 So. 3d 428, 430 (Fla. 2d DCA 2016) (quoting Green Tree
Servicing, LLC v. Milam,
177 So. 3d 7, 14-15 (Fla. 2d DCA 2015)). Paragraph 22 of the
Cooks' mortgage required notice to the borrower prior to acceleration, with such notice
specifying:
(a) the default; (b) the action required to cure the default; (c)
a date, not less than 30 days from the date the notice is
given to Borrower, by which the default must be cured; and
(d) that failure to cure the default on or before the date
specified in the notice may result in acceleration of the sums
secured by this Security Instrument, foreclosure by judicial
proceeding, and sale of the Property.
The default notice, dated February 24, 2009, and mailed to the Cooks at the property
address, provided (a) that the Cooks had defaulted by failing to make required monthly
mortgage payments as of January 1, 2009; (b) that they were required to deliver
$20,607.77 to cure the default; and (c)-(d) that the Cooks' failure to cure before March
26, 2009, might result in acceleration of the entire amount due and commencement of
foreclosure proceedings. The letter also provided that reinstatement was possible. The
paragraph 22 notice clearly was in substantial compliance with the terms of the
mortgage. See U.S. Bank Nat'l Ass'n ex rel. Holders of the Home Equity Asset Tr.
2002-4 Home Equity Pass-Through Certificates, Series 2002-4 v. Doepker,
223 So. 3d
1083, 1085 (Fla. 2d DCA 2017) ("Contrary to the Doepkers' arguments on appeal and
below, there is no indication that the breach letter required any additional payment not
due under the note and mortgage. Moreover, if the Doepkers were unsure of the
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amount due under the note and mortgage, the letter also provided a telephone number
to call with questions."); cf. Grdic v. HSBC Bank USA, N.A. for Registered Holders of
ACE Sec. Corp. Home Equity Loan Tr., 267 So. 3d 473, 474 (Fla. 2d DCA 2019)
(affirming judgment in favor of HSBC where borrower argued that the default notice did
not substantially comply with paragraph 22 because the notice "overstated the amount .
. . owed"); Deutsche Bank Nat'l Tr. Co. for First Franklin Mortg. Loan Tr. 2006-FF16 v.
Green,
253 So. 3d 682, 683 (Fla. 5th DCA 2018) (reversing dismissal where paragraph
22 notice substantially complied with requirements of the mortgage).
Accordingly, because involuntary dismissal was wrongly entered we
reverse the order of dismissal and remand for further proceedings.
Reversed and remanded.
SLEET and ROTHSTEIN-YOUAKIM, JJ., Concur.
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