Opinion
No. 4D16-262
01-04-2017
PENNYMAC CORP., Appellant, v. ROBERT T. FROST a/k/a ROBERT FROST, Appellee.
Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellant. Michael J. Wrubel of Michael Jay Wrubel, P.A., Davie, for appellee.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 14-13793 CACE (11). Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of Akerman LLP, Fort Lauderdale, and Eric M. Levine of Akerman LLP, West Palm Beach, for appellant. Michael J. Wrubel of Michael Jay Wrubel, P.A., Davie, for appellee. PER CURIAM.
PennyMac Corporation appeals from a final order granting an involuntary dismissal of its mortgage foreclosure suit. PennyMac irrefutably established it possessed the original note indorsed in blank at the inception of the case. However, the trial court dismissed the action because PennyMac failed to prove the validity of the indorsement on the bearer note via a chain of transfers. Such proof was not required and we, accordingly, reverse the involuntary dismissal.
The borrower executed a $266,000.00 note and mortgage in favor of Washington Mutual Bank, F.A. on May 31, 2007. The note is indorsed in blank by "JPMorgan Chase Bank, National Association, successor in interest by purchase from the FDIC as Receiver of Washington Mutual Bank, f/k/a Washington Mutual Bank, F.A." The borrower defaulted on the loan by failing to make the September 1, 2008 payment and all subsequent payments.
At the mortgage foreclosure trial, PennyMac presented a prima facie case for foreclosure. The borrower did not dispute PennyMac's evidence regarding execution of the note and mortgage, default, proper notice of default, satisfaction of all conditions precedent to foreclosure, or the amount due and owing on the loan. Further, the borrower did not dispute that PennyMac was in possession of the original note indorsed in blank at the time this action was commenced.
Instead, after PennyMac presented its case-in-chief, the borrower moved for involuntary dismissal on the sole basis that PennyMac failed to show how "JPMorgan Chase Bank, National Association, successor in interest by purchase from the FDIC as Receiver of Washington Mutual Bank, f/k/a Washington Mutual Bank, F.A." had standing to indorse the note. The borrower argued that PennyMac did not establish the validity of the indorsement. He contended that, under section 673.2031, Florida Statutes, PennyMac was required to prove that the FDIC and JPMorgan had standing to enforce the note for the indorsement to be valid. The trial court granted the borrower's motion for involuntary dismissal, prompting this appeal.
The trial court erroneously concluded that PennyMac lacked standing because it failed to prove the validity of the indorsement on the note through a chain of transfers. The indorsement was presumed to be both authentic and made by an authorized party, and the borrower failed to make any showing to the contrary. See § 673.3081(1), Fla. Stat. (2014) (a signature on an instrument is generally "presumed to be authentic and authorized"); § 673.2041(1), Fla. Stat. (2014) (an "indorsement" is "a signature . . . that alone or accompanied by other words is made on an instrument for the purpose of negotiating the instrument . . . ."); Bennett v. Deutsche Bank Nat'l Trust Co., 124 So. 3d 320, 323 (Fla. 4th DCA 2013) ("[T]he effect of the section 673.3081(1) presumption was to require the [borrowers] to make some evidentiary showing to support their claim that [the signer] was unauthorized to sign the allonges. Because they failed to offer any such evidence, Deutsche Bank was entitled to rely on the presumption . . . .").
PennyMac's mere possession of the note indorsed in blank was sufficient for standing. PennyMac did not need to prove a chain of transfers, because it sought to foreclose as a holder in possession of a bearer note. See ALS-RVC, LLC v. Garvin, 201 So. 3d 687, 691 (Fla. 4th DCA 2016) (bank's introduction of the original blank-indorsed note at trial, coupled with evidence that bank was in possession of blank-indorsed note prior to filing the complaint, was sufficient to establish standing, notwithstanding "confusing assignments"); Ortiz v. PNC Bank, Nat'l Ass'n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (where a plaintiff presents a copy of the note with its complaint and later files the original in the same condition, there is a presumption that the plaintiff had actual possession and, therefore, standing to foreclose at the time the suit was filed); Murray v. HSBC Bank USA, 157 So. 3d 355, 358 (Fla. 4th DCA 2015) (standing to foreclose may be established from the plaintiff's status as the note holder, regardless of any recorded assignments).
We reverse the trial court's order of involuntary dismissal and remand for further proceedings.
Reversed and Remanded. TAYLOR, LEVINE and CONNER, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.