Andrew Tremblay, Heidi Tremblay and Mary Tremblay v. U.S. Bank, N.A. , 164 So. 3d 85 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANDREW TREMBLAY, HEIDI TREMBLAY
and MARY TREMBLAY,
Appellants,
v.
U.S. BANK, N.A., as Trustee, Successor-in-Interest to
Wachovia Bank, N.A., as Trustee, for MLMI 2005-A9,
Appellee.
No. 4D13-2402
[May 6, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Miette K. Burnstein, Judge; L.T. Case No. 09-40986 CA.
Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellants.
Kimberly N. Hopkins and Ronald M. Gaché of Shapiro, Fishman &
Gaché, LLP, Tampa, for appellee.
PER CURIAM.
Andrew, Heidi and Mary Tremblay (“Homeowners”) appeal a final
judgment of foreclosure. We find merit in Homeowners’ argument that
appellee, U.S. Bank, N.A. (“Bank”), lacked standing to foreclose when it
filed its foreclosure complaint. Therefore, we reverse the final judgment
and remand for entry of an order of involuntary dismissal. Our conclusion
on Bank’s lack of standing renders moot Homeowners’ second issue on
appeal.
Facts
In Bank’s unverified foreclosure complaint filed in July, 2009, it alleged
it was the current owner and holder of the note and mortgage. In support,
it attached copies of the mortgage and the note. The mortgage listed
Metrocities Mortgage as the lender and MERS as the mortgagee. The note
included a blank indorsement executed by an employee of Metrocities
Mortgage. Bank later filed an assignment of note; however, it was executed
on July 30, 2009, after Bank filed its foreclosure complaint.
At the non-jury trial, Bank called only one witness. This witness
worked for Bank’s servicer, PHH Mortgage Corporation (“PHH”), and
testified that PHH—not Bank—was the holder of the note, and had been
since August of 2005. The witness was unable to identify the exact date
that Bank received the note. While there was apparently a Pooling and
Servicing Agreement (“PSA”) to which both PHH and Bank were parties,
the witness had never seen a copy of the PSA. Bank introduced into
evidence the original note, a copy of the mortgage, the default letter and
payment history, but did not submit the PSA into evidence. The trial court
entered final judgment in favor of Bank.
Analysis
“We review the sufficiency of the evidence to prove standing to bring a
foreclosure action de novo.” Lacombe v. Deutsche Bank Nat’l Trust Co., 149
So. 3d 152, 153 (Fla. 1st DCA 2014) (citing Dixon v. Express Equity Lending
Grp., LLLP, 125 So. 3d 965 (Fla. 4th DCA 2013)).
It is axiomatic that a plaintiff in a foreclosure case must have standing
at the time the complaint is filed. See Focht v. Wells Fargo Bank, N.A., 124
So. 3d 308, 310 (Fla. 2d DCA 2013) (“[S]tanding must be established as of
the time of filing the foreclosure complaint.”). “A plaintiff who is not the
original lender may establish standing to foreclose a mortgage loan by
submitting a note with a blank or special endorsement, an assignment of
the note, or an affidavit otherwise proving the plaintiff’s status as the
holder of the note.” Id. at 310 (citing McLean v. JP Morgan Chase Bank
Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)).
In the instant case, Bank failed to provide sufficient evidence that it
had standing at the time it filed its foreclosure complaint. First, the
assignment did not confer standing upon Bank since it was executed after
Bank filed its complaint. 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). Further, Bank’s attachment of a copy of the note
with a blank indorsement was insufficient to establish standing because
Bank’s only witness testified that his employer—the servicer—had been
the holder of the note since August of 2005. Based on this testimony, the
servicer was the proper party to initiate the action, not Bank. See BAC
Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936,
938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a
note and/or mortgage is the holder of the note and mortgage or the holder’s
representative.”); see Sosa v. U.S. Bank, N.A., 153 So. 3d 950 (Fla. 4th DCA
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2014).
Since Bank failed to provide sufficient evidence of its ability to foreclose
at the time it filed its complaint, we reverse and remand for entry of an
order of involuntary dismissal. See Wolkoff v. Am. Home Mortg. Servicing,
Inc., 153 So. 3d 280, 283 (Fla. 2d DCA 2014) (“‘[A]ppellate courts do not
generally provide parties with an opportunity to retry their case upon a
failure of proof.’” (quoting Correa v. U.S. Bank N.A., 118 So. 3d 952, 956
(Fla. 2d DCA 2013))).
Reversed and remanded.
GROSS, MAY and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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