Rosa v. Deutsche Bank National Trust Co. , 2016 Fla. App. LEXIS 7310 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
EUGENE M. ROSA and LAURA I. ROSA, )
)
Appellants, )
)
v. ) Case No. 2D14-5710
)
DEUTSCHE BANK NATIONAL TRUST )
CO., as Trustee for Fremont Home Loan )
Trust 2006-1, )
)
Appellee. )
)
Opinion filed May 13, 2016.
Appeal from the Circuit Court for Pinellas
County; Karl B. Grube, Associate Senior
Judge.
Eugene M. Rosa and Laura I. Rosa, pro se.
Sara F. Holladay-Tobias, Emily Y.
Rottmann, and Sarah J. Hulsberg of
McGuireWoods LLP, Jacksonville, for
Appellee.
CASANUEVA, Judge.
Eugene and Laura Rosa challenge the final judgment of foreclosure
entered in favor of Deutsche Bank following a bench trial. The Rosas argue that
Deutsche Bank failed to establish that it had standing to file suit at the inception of the
foreclosure action. We agree and reverse.
The Rosas defaulted on the loan in January 2009. Deutsche Bank, which
was not the original lender, filed a two-count complaint for foreclosure and
reestablishment of a lost note in April 2009. Deutsche Bank subsequently filed the
original mortgage and note with an undated, blank endorsement, and it amended its
complaint to drop the lost note count.1 At trial, Deutsche Bank called Mr. and Mrs. Rosa
and a loan verification analyst for Wells Fargo, the servicer of the loan. The loan
verification analyst testified that Wells Fargo became the servicer on July 1, 2006, at
which time Wells Fargo obtained the loan information through its boarding process. He
also testified that it was the business practice of Wells Fargo to obtain the original note
on or about the time it began servicing the loan.
It is well settled that a plaintiff seeking to foreclose on a mortgage loan
must establish that it had standing to foreclose at the time it filed the complaint. May v.
PHH Mortg. Corp., 150 So. 3d 247, 248 (Fla. 2d DCA 2014); McLean v. JP Morgan
Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). A plaintiff alleging
standing as a holder "must prove not only physical possession of the original note but
also, if the plaintiff is not the named payee, possession of the original note endorsed in
favor of the plaintiff or in blank (which makes it bearer paper)." Kiefert v. Nationstar
Mortg., LLC, 153 So. 3d 351, 353 (Fla. 1st DCA 2014); see also Focht v. Wells Fargo
Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) ("To establish standing as the
holder of a note endorsed in blank, a party must be in possession of the original note.").
Further, "[w]here the plaintiff's status as holder relies on a blank indorsement, the
1
The Rosas challenged Deutsche Bank's standing in response to both the
original complaint and the amended complaint.
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plaintiff must establish that it had possession of the original note, indorsed in blank,
when the complaint was filed." Calvo v. U.S. Bank Nat'l Ass'n, 181 So. 3d 562, 564
(Fla. 4th DCA 2015); see also Eagles Master Ass'n v. Bank of Am., N.A., 40 Fla. L.
Weekly D1510, D1510 (Fla. 2d DCA June 26, 2015).
In this case, Deutsche Bank asserted standing as the holder of a note
endorsed in blank. However, there was no testimony that Deutsche Bank was in
physical possession of the original note at the time the lawsuit was filed. The witness
from Wells Fargo was unable to provide any testimony as to Deutsche Bank's
acquisition of the note, stating, "I'm not sure what Deutsche Bank's acquisition
information is." The only testimony as to possession of the note suggests that Wells
Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to
the filing of the complaint.2 Accordingly, the record in this case does not establish that
Deutsche Bank had standing to foreclose at the time it filed its complaint.
Because Deutsche Bank failed to prove that it had standing to foreclose,
we reverse and remand for the trial court to enter an order of involuntary dismissal. See
May, 150 So. 3d at 249.
Reversed and remanded with instructions.
MORRIS and SALARIO, JJ., Concur.
2
Deutsche Bank did not argue below or on appeal that it had constructive
possession of the note by virtue of Wells Fargo's possession, nor was there any
testimony that Wells Fargo was acting as an agent for Deutsche Bank and authorized to
hold the note on its behalf. Cf. Phan v. Deutsche Bank Nat'l Trust Co., 41 Fla. L.
Weekly D516 (Fla. 2d DCA Mar. 4, 2016) (holding that plaintiff established standing
through constructive possession of a note through its agent at the time the foreclosure
complaint was filed).
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