DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BANK OF NEW YORK AS TRUSTEE FOR THE
NOTEHOLDERS CWABS INC. ASSETBACKED NOTES,
SERIES 2006-SD4006-SD4,
Appellant,
v.
ANDREW CALLOWAY, UNKNOWN SPOUSE OF ANDREW CALLOWAY,
TENANT #1, TENANT #2, TENANT #3, TENANT #4, and
LAUREL HILLS NEIGHBORHOOD ASSOCIATION
INCORPORATED DISSOLVED,
Appellees.
No. 4D19-584
[July 15, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward L. Artau, Judge; L.T. Case No.
502008CA004784XXXXMB.
Brian A. Wahl of Bradley Arant Boult Cummings LLP, Birmingham,
Alabama, for appellant.
Geoffrey E. Sherman and Roy D. Oppenheim of Oppenheim Pilelsky,
P.A., Weston, for appellee Andrew Calloway.
KUNTZ, J.
Bank of New York, as Trustee for the Noteholders CWABS Inc.
Assetbacked Notes, Series 2006-SD4006-SD4, appeals the circuit court’s
order finding the Bank of New York lacked standing and granting
involuntary dismissal. We reverse.
Background
Andrew Calloway signed a note and mortgage, borrowing money from
USMoney Source, Inc., d/b/a Soluna First.
USMoney, the original lender, executed a blank endorsement on an
allonge to the note. The endorsement referenced the borrower, loan
number, and the date it was signed.
The allonge also contained two other endorsements. First, an officer of
Countrywide Bank, N.A. endorsed the note in favor of Countrywide Home
Loans, Inc. Then, an officer of Countrywide Home Loans, Inc. endorsed
the note in blank. Neither Countrywide endorsement was dated.
After the original lender endorsed the note in blank, several parties—
CWABS, Inc., the CWABS Asset-Backed Notes Trust 2006-SD4,
Countrywide Home Loans, Countrywide Home Loans Servicing LP, and
Bank of New York—entered into a pooling and servicing agreement (“PSA”).
Under this PSA, Countrywide Home Loans, Inc. conveyed the mortgage
loans identified as covered by the PSA to CWABS, which then sold the
subject loans to the CWABS Asset-Backed Notes Trust 2006-SD4. Within
the PSA, Countrywide Home Loans and CWABS affirmed that they had the
original note for each note listed and that each note would be endorsed in
blank.
The list of loans attached to the PSA specifically included Calloway’s
loan.
After Calloway allegedly defaulted on the note, Bank of New York filed
a verified foreclosure complaint. Attached to the complaint was a copy of
the note including the allonge from the original lender. But the
endorsements from Countrywide Bank and Countrywide Home Loans did
not appear on the copy.
After a bench trial, the court entered judgment for Calloway, finding the
Bank’s evidence regarding the prior servicers’ business records were
inadmissible. We reversed, holding that the business records were
admissible. See Bank of N.Y. v. Calloway,
157 So. 3d 1064, 1074 (Fla. 4th
DCA 2015).
On remand, the circuit court held a bench trial over multiple days. At
trial, a foreclosure litigation specialist for Bank of New York’s servicer
testified. She testified that her employer, Shellpoint Mortgage Servicing,
used Lender Processing Services and Interlink Lender Services to maintain
documents, comments, servicing notes, and data relating to the loan. She
testified that when Shellpoint took over servicing a loan, it requested the
PSA from the trustee. It then compared the data in the PSA with the loan
documents; she explained: “And [at] each level of boarding[,] we confirm
that the loans that are coming in with the pool are listed on the mortgage
2
loan schedule that accompanies the PSA, that the loans closed before the
closing date on the PSA.”
The litigation specialist described Shellpoint’s multi-step process.
First, Shellpoint received a data transfer of information regarding loans
and documents coming in. A couple of weeks later, it received a pool of
loans. Finally, the Bank transferred more specific information to
Shellpoint, and Shellpoint compared the newly transferred information
with the first batch of information in what was called a “data scrub.” An
auditing process ensured the data was entered into the system correctly.
The litigation specialist also testified that a mortgage loan schedule was
attached to the PSA. The mortgage loan schedule included a loan
matching Calloway’s loan number, interest rate, and payment amount.
A member of Bank of America’s consumer resolution team also testified.
Countrywide hired him in 2008. During his employment, the bank’s name
changed multiple times, ultimately becoming Bank of America. The
employee testified that the trustee received the original note in 2006, well
before the complaint was filed in 2008. He also testified that when the
note was delivered to the trustee, it was “investor qualified,” meaning it
met the criteria for a pooling and servicing agreement.
The court granted Calloway’s motion for involuntary dismissal. It noted
that the copy of the note filed with the original complaint included a blank
endorsement, but the original note introduced at trial included two later
endorsements. The court also found that Bank of New York failed to
provide competent, substantial evidence establishing when the other
endorsements were placed on the note.
Analysis
Bank of New York argues the court erred when it granted an
involuntary dismissal in favor of Calloway. We agree and reverse.
“A crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose.” Caraccia v. U.S. Bank, Nat’l Ass’n,
185 So. 3d 1277, 1278 (Fla.
4th DCA 2016) (quoting McLean v. JP Morgan Chase Bank Nat’l Ass’n,
79
So. 3d 170, 173 (Fla. 4th DCA 2012)). “[S]tanding may be established from
a plaintiff’s status as the note holder, regardless of any recorded
assignments.” McLean,
79 So. 3d at 173 (citation omitted). A note that
does not name the plaintiff as a payee must include either a special
endorsement in the plaintiff’s name or a blank endorsement.
Id. (citations
3
omitted). “A holder is ‘the person in possession of a negotiable instrument
that is payable either to bearer or to an identified person that is the person
in possession.’” Caraccia, 185 So. 3d at 1279 (quoting § 671.201(21)(a),
Fla. Stat. (2013)).
Here, Bank of New York alleged that it was the holder of the mortgage
and the note. But because the copy of the note, filed with the complaint,
included a blank endorsement and the original note, introduced at trial,
included two later endorsements, the circuit court involuntarily dismissed
the complaint.
A plaintiff may establish standing to foreclose in more than one way. It
is true that attaching a copy of a note endorsed in blank and later filing
the original note, identical to the copy, is one method of establishing
standing. See, e.g., Fed. Nat’l Mortg. Ass’n v. Rafaeli,
225 So. 3d 264, 268
(Fla. 4th DCA 2017) (citing Ortiz v. PNC Bank, Nat’l Ass’n,
188 So. 3d 923
(Fla. 4th DCA 2016)). But it is not the only way.
A holder, at trial, can also present the original note endorsed to it with
evidence establishing when the endorsement was placed on the note. See
Corrigan v. Bank of Am., N.A.,
189 So. 3d 187, 190 (Fla. 2d DCA 2016).
But see Focht v. Wells Fargo Bank, N.A.,
124 So. 3d 308, 312 (Fla. 2d DCA
2013) (Altenbernd, J., concurring) (on the requirement to establish
standing when a foreclosure complaint is filed, commenting that “[t]he
courts have erroneously transformed what should be a defendant’s
affirmative defense . . . into a jurisdictional prerequisite that must be
established by the plaintiff to avoid a dismissal of the action”).
Alternatively, a plaintiff may present “proof of valid, timely assignments of
the note and mortgage.” Nationstar Mortg., LLC v. Kelly,
199 So. 3d 1051,
1052 (Fla. 5th DCA 2016).
Relevant to this case, reliance on a pooling and servicing agreement is
yet another method of proving standing. See, e.g., HSBC Bank USA, Nat’l
Ass’n for Fremont Home Loan Tr. 2006-C v. Alejandre,
219 So. 3d 831, 832
(Fla. 4th DCA 2017); Bolous v. U.S. Bank Nat’l Ass’n,
210 So. 3d 691, 692
(Fla. 4th DCA 2016).
In Bolous, the bank filed a foreclosure complaint alleging it owned and
held the note and mortgage.
210 So. 3d at 692. The bank later amended
the complaint to allege it was the holder of the note entitled to enforce the
note because it was in possession of the blank-endorsed note.
Id. An
allonge, with the original lender’s undated blank endorsement, was
attached to the amended complaint.
Id.
4
The servicer’s loan analyst testified that the note moved from the bank
to the trust in 2005.
Id. The analyst also identified the pooling and
servicing agreement and mortgage loan schedule, testifying that the
mortgage loan schedule attached to the pooling and servicing agreement
included the borrower’s loan.
Id. at 692–93.
Even though “the note attached to the original complaint was not
endorsed, the later-filed blank-endorsed allonge was undated, and the
bank’s witness did not know when the allonge was created,”
id. at 693, we
held that the bank’s evidence was sufficient to establish standing because
“the pooling and servicing agreement’s terms, along with its corresponding
mortgage loan schedule and the other evidence presented through the
analyst . . . demonstrate[d] that the bank was the owner or holder of the
note at the time it filed the original complaint,”
id. at 695. We did not rely
exclusively on the pooling and servicing agreement, but we accepted the
bank’s use of that document, together with other evidence, to prove
standing. See
id. at 692–93.
Similarly, in Alejandre, the bank introduced the pooling and servicing
agreement at trial to prove standing.
219 So. 3d at 832. In that case, the
pooling and servicing agreement identified the bank as the trustee and
contained language indicating that the note endorsed in blank was
transferred into the trust.
Id. The bank’s witness also testified that the
borrower’s note was in the trust.
Id. We held this was sufficient to
establish the bank’s standing.
Id.
These cases demonstrate that a pooling and servicing agreement can
be used to establish a plaintiff’s standing when a mortgage foreclosure
lawsuit is filed. See Alejandre,
219 So. 3d at 832; Bolous,
210 So. 3d at
695; see also Deutsche Bank Nat’l Tr. Co. v. Marciano,
190 So. 3d 166, 168
(Fla. 5th DCA 2016).
That is what occurred in this case. Here, Bank of New York’s witness
testified that Bank of New York’s custodian received the original
unrecorded note before the lawsuit was filed. A separate witness
authenticated the PSA and testified that it included this loan. 1 In fact, the
mortgage loan schedule, attached to the PSA, specifically referenced
Calloway’s loan.
1The authentication of the PSA here distinguishes it from cases like Madl v. Wells
Fargo Bank, N.A.,
244 So. 3d 1134 (Fla. 5th DCA 2017), where the pooling and
servicing agreement was not authenticated.
5
Based on the authenticated PSA and the other evidence introduced at
trial, Bank of New York proved it had standing to foreclose.
Conclusion
The circuit court’s involuntary dismissal is reversed, and the case is
remanded for further proceedings.
Reversed and remanded. 2
WARNER and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 We are mindful of the issuance of Executive Order 20-159 (extending, until
12:01 a.m. on August 1, 2020, Executive Order 20-94, which suspends and tolls
any statute providing for a mortgage foreclosure cause of action under Florida
law). We trust any motions directed to this order shall be filed in the lower
tribunal upon issuance of our mandate.
6
