THOMAS E. JOHNSON AND KELI N. JOHNSON v. DEUTSCHE BANK TRUST COMPANY

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
KELI N. JOHNSON and THOMAS E. )
JOHNSON, )
)
Appellants, )
)
v. ) Case No. 2D16-4262
)
DEUTSCHE BANK NATIONAL TRUST )
COMPANY AMERICAS, as Trustee RALI )
2007-QS1, )
)
Appellee. )
)
Opinion filed May 11, 2018.
Appeal from the Circuit Court for Polk
County; Keith P. Spoto, Judge.
Mark P. Stopa of Stopa Law Firm, Tampa,
for Appellants.
William L. Grimsley, Kimberly Held Israel,
and N. Mark New, II, of McGlinchey
Stafford, Jacksonville, for Appellee.
LUCAS, Judge.
Keli and Thomas Johnson appeal the circuit court's entry of a final
summary judgment against them in a residential mortgage foreclosure case brought by
Deutsche Bank National Trust Company Americas, as Trustee RALI 2007-QS1 (RALI).
They raise five arguments on appeal. We find merit within the fourth—that RALI failed
to conclusively establish its standing to enforce the Johnsons' promissory note—and
reverse the summary judgment on that basis.
The Johnsons borrowed $236,000, apparently in connection with a home
improvement construction loan, which was memorialized by a promissory note in that
amount dated April 28, 2006. The Johnsons' note was originally payable to National
City Mortgage, a division of National City Bank of Indiana, and secured by a mortgage
on the Johnsons' property in Polk County, Florida. The promissory note contained three
endorsements, the last of which made the note payable to "Deutsche Bank Trust
Company Americas as Trustee," with no further identifying information of which trust this
entity was acting on behalf of.1
When the Johnsons allegedly defaulted on the note in 2011, RALI filed the
underlying complaint. It later amended its complaint twice, so that in its final, operative
iteration, RALI alleged it had standing to enforce the Johnsons' note as a holder of the
note. The Johnsons generally denied RALI's allegations in their answer and asserted
1Independently of the endorsements, RALI also filed a series of
assignments, which it maintained established its standing as an owner and a holder of
the Johnsons' note. These assignments would not establish RALI's standing for
purposes of summary judgment, however, because the final assignment in the series
only purported to assign the Johnsons' mortgage to RALI, not the note itself. See, e.g.,
Houk v. PennyMac Corp., 210 So. 3d 726, 732 (Fla. 2d DCA 2017) (holding that plaintiff
"did not acquire standing to foreclose based on an assignment of only the mortgage");
Caballero v. U.S. Bank Nat'l Ass'n ex rel. RASC 2006-EMX7, 189 So. 3d 1044, 1046
(Fla. 2d DCA 2016) ("[A]ssignment was insufficient to show standing because it only
purported to assign the mortgage, not the note."); 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."). RALI's second amended
complaint asserts its standing solely on the theory that it was the holder of the
Johnsons' note.
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several affirmative defenses, including lack of standing on the part of RALI to enforce
the note. RALI eventually filed the original note, which contained endorsements
appearing to match those on the copy attached to its pleading.2
The case proceeded with itinerant discovery and motion practice, and on
July 8, 2016, RALI filed a motion for summary judgment. In support of its motion, it also
filed an affidavit signed by Sarah Greggerson, an employee of PNC Mortgage, an entity
that purported to be servicing the Johnsons' loan. It appears from the record that RALI
relied upon PNC's status as its servicer as a basis to establish RALI's status as a holder
of the Johnsons' note (Ms. Greggerson's affidavit was the only one filed in support of
RALI's motion for summary judgment). In our view, that was insufficient evidence of
RALI's standing for purposes of summary judgment in this case.
We review a summary judgment under a de novo standard of review.
Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)).
Summary judgment is proper only where the moving
party shows conclusively that there are no genuine issues of
material fact and that it is entitled to judgment as a matter of
law. When the nonmoving party has alleged affirmative
defenses, the moving party must conclusively refute the
2RALI has not argued, either below or in this appeal, that it was entitled to
an inference of possession of the note at the time the complaint was filed under Ortiz v.
PNC Bank, National Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) ("[I]f the Bank later
files with the court the original note in the same condition as the copy attached to the
complaint, then we agree that the combination of such evidence is sufficient to establish
that the Bank had actual possession of the note at the time the complaint was filed and,
therefore, had standing to bring the foreclosure action, absent any testimony or
evidence to the contrary."). Moreover, the trial court never made a finding upon which
we could conclude that the Ortiz inference would have been applicable. See, e.g.,
Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) ("[A]n appellate court
cannot employ the tipsy coachman rule where a lower court has not made factual
findings on an issue.").
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factual bases for the defenses or establish that they are
legally insufficient. "The burden of proving the existence of
genuine issues of material fact does not shift to the opposing
party until the moving party has met its burden of proof."
Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011)
(emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976
So. 2d 680, 682 (Fla. 2d DCA 2008)). "If the record reflects the existence of any
genuine issue of material fact or the possibility of any issue, or if the record raises even
the slightest doubt that an issue might exist, summary judgment is improper." Atria
Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015)
(quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)).
This court has held that in residential mortgage foreclosure cases, the
plaintiff bears the burden of proving its standing at the time of trial and at the time it filed
its complaint if the issue of standing is contested. See Corrigan v. Bank of Am., N.A.,
189 So. 3d 187, 189 (Fla. 2d DCA 2016) (en banc); see also Winchel v. PennyMac
Corp., 222 So. 3d 639, 642-43 (Fla. 2d DCA 2017) (noting the "legal oddity" that
standing has become in residential foreclosure cases and summarizing, "[o]nce put at
issue by a defendant, then, standing becomes a part of the prima facie case that a
foreclosure plaintiff must prove in order to secure a judgment"). The summary judgment
evidence regarding RALI's standing—challenged, as it was, by the Johnsons' affirmative
defense—fell short of what was required for a summary adjudication.
Ms. Greggerson's affidavit stated only that "Plaintiff has owned and held
the Note since prior to the filing of the Complaint in this action." The problem with that
assertion, however, is that Ms. Greggerson was not affiliated in any way with the
plaintiff, RALI. The limited facts stated in her affidavit failed to address how she derived
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this knowledge about RALI's connection to the Johnsons' note or how RALI became an
owner or holder of the Johnsons' note; and there was no claim within her affidavit that
PNC was holding the Johnsons' note on behalf of RALI. See, e.g., Peters v. Bank of
N.Y. Mellon, 227 So. 3d 175, 180 (Fla. 2d DCA 2017) (finding testimony of "case
manager" employed by servicer—who took over servicing after the filing of the lawsuit—
was insufficient to establish ownership of the lost note because "Ms. Stevens had no
personal knowledge about the Bank's claim to have acquired ownership of the note in
2006. Moreover, Ms. Stevens's testimony in this regard was not supported by the
limited documentary evidence about the loan that was available. Because Ms.
Stevens's testimony was not based on personal knowledge and was not supported by
any documentation, we conclude that the testimony was insufficient to establish the
Bank's ownership of the lost note."); Rosa v. Deutsche Bank Nat'l Tr. Co., 191 So. 3d
987, 988-89 (Fla. 2d DCA 2016) (holding that "the record in this case does not establish
that Deutsche Bank had standing to foreclose at the time it filed its complaint" because
its sole witness, an employee of its servicer, Wells Fargo, "was unable to provide any
testimony as to Deutsche Bank's acquisition of the note" and remarking that "[t]he 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");
Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (finding
second servicer's representative's testimony was insufficient to prove first servicer's
standing at time of inception of suit because "[t]hat testimony established at most that
the first servicer was in fact servicing the mortgage when it filed suit, not that the first
servicer held the note when it filed suit"); Jaffer v. Chase Home Fin. LLC, 92 So. 3d 240,
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242 (Fla. 4th DCA 2012) ("Under [Florida Rule of Civil Procedure 1.510(e)], affidavits
must be based on personal knowledge, set forth facts which would be admissible in
evidence, and show 'the affiant is competent to testify to the matters stated therein.' "
(quoting Coleman v. Grandma's Place, Inc., 63 So. 3d 929, 932 (Fla. 4th DCA 2011))).
And in this case, the documents attached to Ms. Greggerson's affidavit did not dispel
the question of this note's ownership or who was the note's holder such that there was
not "the slightest doubt that an issue might exist" concerning RALI's standing. See Atria
Grp., 170 So. 3d at 886. Indeed, on this record, it is not even clear that PNC had the
underlying authority to act as a servicer for RALI or to hold the Johnsons' note on
RALI's behalf. Cf. Rosa, 191 So. 3d at 988 n.2 (noting that foreclosing plaintiff,
Deutsche Bank, did not argue constructive possession of its note by its servicer, Wells
Fargo, or that Wells Fargo was acting as Deutsche Bank's agent that was authorized to
hold the note on Deutsche Bank's behalf (citing Phan v. Deutsche Bank Nat'l Tr. Co.,
198 So. 3d 744 (Fla. 2d DCA 2016))). With respect to PNC's authority, Ms.
Greggerson's affidavit stated only that "PNC is the mortgage servicer for the Plaintiff . . .
for the mortgage loan account that is the subject of this litigation (the 'Mortgage Loan').
A copy of the Power of Attorney from the Deutsche Bank Trust Company Americas, as
Trustee to PNC is attached hereto as Exhibit 'A.' " The limited power of attorney
attached to her affidavit actually named Ocwen Loan Servicing, LLC, as RALI's servicer,
not PNC.3 Having elected to rely solely on this affidavit and its attachments, RALI failed
3A separate "certification" of one of Ocwen Loan Servicing, LLC's
assistant secretaries was also attached as an exhibit to Ms. Greggerson's affidavit, and
it appeared to include an enumerated list of certain PNC employees authorized to act
on Ocwen's behalf. Ms. Greggerson's name did not appear on that list.
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to meet its burden of proving there was no material issue of fact concerning RALI's
standing. We must, therefore, reverse the final summary judgment.
In so holding, we do not reach the remaining issues the Johnsons present;
first, because we need not do so in order to resolve this appeal, but second, because
we are hesitant to do so in a case where we have no transcript from the summary
judgment hearing in our record. This latter point is one we believe merits some
elucidation.
Some of the arguments raised by the Johnsons in this appeal, while
perhaps meritorious, presented the very real potentiality that they were either
unpreserved or even waived. To take one example, the first issue the Johnsons
advanced in their briefing was that RALI should not have obtained a summary judgment
premised upon a loan modification agreement that RALI had neither pleaded nor
attached to its operative complaint. We can see from our record that the final summary
judgment in this case was indeed based, in part, upon a loan modification agreement
that was introduced through Ms. Greggerson's affidavit. We can also see that that loan
modification agreement was not mentioned anywhere within RALI's second amended
complaint or attached as an exhibit to that pleading. See Fla. R. Civ. P. 1.130(a) ("All
bonds, notes, bills of exchange, contracts, accounts, or documents on which action may
be brought . . . must be incorporated in or attached to the pleading."); cf. Tracey v. Wells
Fargo Bank, N.A., 43 Fla. L. Weekly D652b, D655b (Fla. 2d DCA Mar. 23, 2018)
(holding that the trial court erred in permitting a foreclosing lender to amend its
complaint to conform to the evidence at trial in order to recover on unpled loan
modification agreements). What we cannot see is whether the Johnsons brought that
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pleading impropriety to the circuit court's attention at any time prior to or during the
summary judgment hearing. See Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So.
2d 579, 581 (Fla. 2d DCA 2004) (holding that employer's failure to object to the
sufficiency of employee's administrative complaint's verification during the
administrative process "acted as a waiver of any objection" to the pleading's sufficiency
(citing Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991))); Gordon v. Gordon, 543 So. 2d
428, 429 (Fla. 2d DCA 1989) ("An issue that has not been framed by the pleadings,
noticed for hearing, or litigated by the parties is not a proper issue for the court's
determination."). Were we to take up this argument, we would have to tacitly assume
that the Johnsons had presented it below in the face of a record that is completely silent
on that point.
Florida law calls upon appellate courts to provide a careful de novo
scrutiny of summary judgment rulings, given what is at stake. See Bifulco v. State Farm
Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (observing that summary
judgment "brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the
litigant from the benefit of and right to a trial on the merits of his or her claim"). In that
spirit, we, along with our sister courts, have occasionally remarked that the lack of a
transcript of a summary judgment hearing will not necessarily thwart an appellate review
of a summary judgment. See, e.g., Kamin v. Fed. Nat'l Mortg. Ass'n, 230 So. 3d 546,
548 n.2 (Fla. 2d DCA 2017) ("[A] hearing transcript is usually 'not necessary for
appellate review of a summary judgment.' " (quoting Houk v. PennyMac Corp., 210 So.
3d 726, 730 (Fla. 2d DCA 2017))); Shahar v. Green Tree Servicing LLC, 125 So. 3d
251, 254 (Fla. 4th DCA 2013) ("[H]earing transcripts ordinarily are not necessary for
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appellate review of a summary judgment."); Gonzalez v. Chase Home Fin. LLC, 37 So.
3d 955, 958-59 (Fla. 3d DCA 2010) (holding that it was "not necessary to procure a
transcript of the summary judgment hearing" where "the [summary judgment]
evidence—in the form of the pleadings, [the defendant's] affidavit, and the county
records"—demonstrated that genuine issues of material fact remained (quoting Seal
Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998))).
But the context in which this observation arises is almost universally
confined to appeals concerning the sufficiency of the summary judgment evidence
before the trial court. See, e.g., Kamin, 230 So. 3d at 548; Shahar, 125 So. 3d at 253-
54; Gonzalez, 37 So. 3d at 958-59. That was why in Houk, 210 So. 3d at 731, a case
where we devoted a section of analysis to the absence of a summary judgment hearing
transcript, we took care to point out that "in this case," where the summary judgment
evidence about enforcement of a lost note included "the operative complaint, . . . [the]
answer and affirmative defenses, the motion and the order for substitution of the
plaintiff, the amended motion for summary judgment, and the supporting and opposing
affidavits, including the affidavit of lost note," we had "all of the portions of the record
necessary for us to determine whether the summary judgment was properly entered."
"Under these circumstances," we concluded, a hearing transcript would provide no
further insight about the evidentiary record's sufficiency. Id. These kinds of
pronouncements, issued within case-specific, de novo reviews of evidentiary records,
should not be read to the neglect of securing court reporters to transcribe summary
judgment hearings. To the contrary, presenting an adequate record—one that
demonstrates not only what evidence was presented below but also which arguments
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were preserved—remains the appellant's burden in an appeal of a summary judgment.
See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) ("Except in cases of fundamental
error, an appellate court cannot consider any ground for objection not presented to the
trial court." (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Cagwin v.
Thrifty Rents, Inc., 219 So. 3d 1003, 1004 (Fla. 2d DCA 2017) (discussing appellant's
argument that the affiant who executed a summary judgment affidavit did not have
sufficient knowledge to attest to the matters in the affidavit but concluding "we cannot
determine whether such a challenge was properly raised or addressed at the summary
judgment hearing because we have no transcript" (citing Zarate v. Deutsche Bank Nat'l
Tr. Co., 81 So. 3d 556, 557-58 (Fla. 3d DCA 2012))); Black Point Assets, Inc. v. Fed.
Nat'l Mortg. Ass'n, 220 So. 3d 566, 567 (Fla. 5th DCA 2017) (addressing the sufficiency
of a complaint and summary judgment evidence to establish foreclosure and noting
"Black Point's additional objections to the summary judgment were not preserved for
appeal"); Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) ("Any basis for
reversal of summary judgment must be preserved by raising the issue in the trial
court.").
All of which is to say, the de novo review that we employ for summary
judgment rulings is not a gateway to reach unpreserved legal arguments, as if they were
fundamental error. Cf. Coba v. Tricam Indus., Inc., 164 So. 3d 637, 646 (Fla. 2015)
("[I]n civil cases, reversal based on the concept of 'fundamental error' where a timely
objection has not been made is exceedingly rare."). So while a lack of a transcript, in
and of itself, will not necessarily prohibit appellate review of the evidence underlying a
summary judgment ruling, it could in some cases stymie the fullness of a legal argument
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challenging that ruling on appeal if there is a question about whether the argument was
preserved. We reiterate, then, what we stated in Houk: while it might not be necessary
to procure a transcript from a summary judgment hearing in every case, it is indeed
"often helpful to do so," id. at 731 (quoting Seal Prods., 705 So. 2d at 975), especially in
cases where preservation of a legal argument might otherwise be in question.
Here, however, we are satisfied that the record we do have reflects a
genuine issue of material fact that was argued below. RALI's standing was a contested
point almost from the beginning of this litigation, and the evidence of its standing as an
owner or holder of the Johnsons' promissory note was insufficient to sustain a summary
judgment in its favor. For that reason, we reverse the circuit court's final summary
judgment and remand this case for further proceedings.
Reversed and remanded.
SILBERMAN and SLEET, JJ., Concur.
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