THE BANK OF NEW YORK MELLON, etc. v. HARLAN S. GINSBERG

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL
ASSOCIATION f/k/a The Bank of New York Trust Company, N.A., as
Successor to JPMorgan Chase Bank, N.A., as Trustee for Ramp
2003RS9,
Appellant,
v.
HARLAN S. GINSBERG, UNKNOWN HEIRS, BENEFICIARIES,
DEVISEES AND ALL OTHER PARTIES CLAIMING AN INTEREST BY,
THROUGH, UNDER OF THE ESTATE OF FRANCES L. GINSBERG
a/k/a FRANCES LILA GINSBERG a/k/a FRANCES LILLIAN
GINSBERG, deceased,
Appellees.
No. 4D16-3168
[July 5, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. 10-26422 .
Kimberly S. Mello and Danielle M. Diaz of Greenberg Traurig, P.A.,
Tampa, for Bank of New York Mellon Trust Company, National
Association.
David A. Strauss of The Strauss Law Firm, P.A., Fort Lauderdale, for
appellee Harlan S. Ginsberg.
HANZMAN, MICHAEL A., Associate Judge.
Appellant, the Bank of New York Mellon Trust Company, National
Association f/k/a The Bank of New York Trust Company, N.A., as
Successor to JPMorgan Chase Bank, N.A., as Trustee for Ramp 2003RS9
(the “Bank”), seeks reversal of summary judgment in favor of appellee,
Harlan Ginsberg (“Ginsberg”). The Bank asserts that the disparity
between the name of the trust in the complaint and the name of the trust
in the special endorsement to the promissory note did not create a
standing defect. We agree and reverse.
The Bank alleged in its complaint that it was trustee of the “Ramp
2003RS9” trust. The Bank subsequently filed a copy of the promissory
note. The note had a special endorsement in favor of “The Bank of New
York Mellon Trust Company, National Association F/K/A The Bank of New
York Trust Company, N.A. as Successor to JPMorgan Chase Bank, as
Trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-
Backed Pass-Through Certificates, Series 2003-RS9.” Although the Bank
moved to correct the scrivener’s error in the complaint, the trial court
denied the Bank’s motion. Ginsberg then moved for summary judgment,
arguing that the Bank “named the wrong trust” in its complaint. The only
evidence Ginsberg offered to support the motion was the trial court’s denial
of the Bank’s motion to correct the scrivener’s error. The Bank did not
offer evidence to oppose summary judgment. The trial court granted
summary judgment and the Bank appealed.
We review the trial court’s grant of summary judgment de novo. See
Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000).
A plaintiff has standing to foreclose if, at the time the complaint is filed,
it possesses the promissory note and the note bears either a special
endorsement in favor of the plaintiff or a blank endorsement. McLean v.
JP Morgan Chase Bank Nat’l. Assoc., 79 So. 3d 170, 173 (Fla. 4th DCA
2012). Here, the special endorsement on the note is in favor of the Bank,
and Ginsberg offered no evidence to show the Bank lacked possession of
the note at the time it filed the complaint. To prove standing, a plaintiff is
not required to identify or prove the trust on whose behalf the plaintiff
acts. See id. Thus, in this case, the fact that the trust identified in the
complaint is somewhat different from the trust identified in the special
endorsement does not create a defect in standing. See also Fla. R. Civ. P.
1.120(a) (“It is not necessary to aver the capacity of a party to sue or be
sued . . . except to the extent required to show the jurisdiction of the
court.”).
Additionally, the Bank had no burden to come forward with evidence to
oppose Ginsberg’s motion for summary judgment. Ginsberg did not
“tender[] competent evidence in support of his motion” for summary
judgment. Wells Fargo Bank, N.A. v. Bilecki, 192 So. 3d 559, 561 (Fla. 4th
DCA 2016) (quoting Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476,
479 (Fla. 4th DCA 2006)). Thus, the Bank was not obligated “to come
forward with opposing evidence.” See id.We therefore reverse and remand for further proceedings consistent
with this opinion.
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Reversed and remanded for further proceedings.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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