Caballero v. U.S. Bank National Association , 2016 Fla. App. LEXIS 5918 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
OMAR T. CABALLERO and AUDREY )
K. CABALLERO, )
)
Appellants, )
)
v. ) Case No. 2D15-266
)
U.S. BANK NATIONAL ASSOCIATION )
as trustee for RASC 2006-EMX7, and )
WESTCHASE COMMUNITY )
ASSOCIATION, INC., )
)
Appellees. )
___________________________________ )
Opinion filed April 20, 2016.
Appeal from the Circuit Court for
Hillsborough County; Christine K. Vogel,
Senior Judge.
Elizabeth L. Hapner of Hapner Law,
Tampa, for Appellants.
Linda M. Reck of Greenberg Traurig, P.A.,
Orlando, and Michele L. Stocker of
Greenberg Traurig, P.A., Fort Lauderdale,
for Appellee U.S. Bank National
Association as Trustee for RASC 2006-
EMX7.
No appearance for remaining Appellee.
KHOUZAM, Judge.
Omar T. Caballero and Audrey K. Caballero appeal the final summary
judgment of foreclosure entered in favor of U.S. Bank National Association as Trustee
for RASC 2006-EMX7. The Caballeros argue that U.S. Bank failed to prove that it had
standing to foreclose because it failed to show that the note was validly transferred to it.
We agree that, on the record before us, there was insufficient evidence to show U.S.
Bank's standing. Therefore, we must reverse and remand for further proceedings. We
decline to comment on the remaining issues raised by the Caballeros.
U.S. Bank filed the foreclosure complaint on October 27, 2011. Attached
to the complaint was a copy of the note and mortgage dated June 5, 2006, and
identifying the lender as Mortgage Lenders Network USA, Inc. The note bore a special
endorsement in favor of EMAX Financial Group, LLC. Also attached was a July 20,
2006, allonge transferring the note from Mortgage Lenders Network USA, Inc., to
Residential Funding Corporation and then by special endorsement from Residential
Funding Corporation to U.S. Bank National Association as Trustee. Finally, attached to
the complaint was an assignment of the mortgage from Mortgage Electronic
Registration Systems, Inc., as nominee for Mortgage Lenders Network USA, Inc., to
U.S. Bank National Association as Trustee for RASC 2006-EMX7.
On July 15, 2013, U.S. Bank filed the original note, a copy of the
mortgage, and a copy of the assignment. Attached to the original note was an allonge,
but it was not the same allonge that had been attached to the complaint. This new
allonge was undated and bore a blank endorsement from EMAX Financial Group, LLC.
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Though this allonge listed Mr. Caballero's name and the correct property address, it
contained a different loan number than the other documents.
These documents are insufficient to show that U.S. Bank had standing to
foreclose. Though the copy of the note and the allonge attached to the complaint
indicate that the note was transferred to U.S. Bank, U.S. Bank never filed the original
allonge. "In order to prevail in a suit on a note and mortgage, the original note and
mortgage must be introduced into evidence or a satisfactory reason must be given for
failure to do so." Fair v. Kaufman, 647 So. 2d 167, 168 (Fla. 2d DCA 1994). Because
an allonge is essentially part of the note, see Isaac v. Deutsche Bank Nat'l Trust Co., 74
So. 3d 495, 496 n.1 (Fla. 4th DCA 2011), it was necessary for U.S. Bank to file the
original allonge along with the original note.
Instead of filing the original allonge with the original note, U.S. Bank filed a
different allonge. This allonge contained a different loan number, so U.S. Bank failed to
establish that this allonge pertained to the correct loan. And even though this allonge
did bear a blank endorsement, it was undated, and thus U.S. Bank failed to establish
that this allonge and endorsement were attached to the note at the time the complaint
was filed. See Seffar v. Residential Credit Sols., Inc., 160 So. 3d 122, 125-26 (Fla. 4th
DCA 2015) (holding that the bank had failed to show standing where "[n]o evidence was
presented that the allonge was executed and attached to the note prior to the filing of
the initial complaint"). Finally, the assignment was insufficient to show standing
because it only purported to assign the mortgage, not the note. See Lamb v. Nationstar
Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) ("A bank does not have
standing to foreclose where it relies on an assignment of the mortgage only."). Because
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U.S. Bank failed to show standing, summary judgment should not have been entered in
its favor.
Reversed and remanded for further proceedings.
SLEET and LUCAS, JJ., Concur.
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