Opinion
Case No. 2D18-958
03-20-2020
U.S. BANK, N.A. in its capacity, AS TRUSTEE FOR the REGISTERED HOLDERS OF HOME EQUITY ASSET TRUST 2006-2, HOME EQUITY PASS-THROUGH CERTIFICATES, SERIES 2006-2, Appellant, v. Stephen M. MINK a/k/a Stephen Mink and Piedad A. Mink, Appellees.
W. Bard Brockman and Christian J. Bromley of Bryan Cave Leighton Paisner, LLP, Atlanta, Georgia; Zina Gabsi of Bryan Cave Leighton Paisner, LLP, Miami, for Appellant. Bryant H. Dunivan Jr. of Owen & Dunivan, PLLC, Tampa, for Appellee Piedad A. Mink. No appearance for Appellee Stephen M. Mink.
W. Bard Brockman and Christian J. Bromley of Bryan Cave Leighton Paisner, LLP, Atlanta, Georgia; Zina Gabsi of Bryan Cave Leighton Paisner, LLP, Miami, for Appellant.
Bryant H. Dunivan Jr. of Owen & Dunivan, PLLC, Tampa, for Appellee Piedad A. Mink.
No appearance for Appellee Stephen M. Mink.
ATKINSON, Judge.
U.S. Bank, N.A., in its capacity as Trustee for the Registered Holders of Home Equity Asset Trust 2006-2, Home Equity Pass-Through Certificates Series 2006-2 (U.S. Bank) appeals a final judgment of foreclosure entered in favor of Stephen M. Mink a/k/a Stephen Mink and Piedad A. Mink (Mink) following a nonjury trial. U.S. Bank argues that the trial court erred in finding that U.S. Bank lacked standing to foreclose at the time the complaint was filed. We agree and reverse.
The Minks jointly executed the note at issue in this appeal. However, Mr. Mink passed away years after the underlying litigation was filed. As such, this appeal affects Mrs. Mink who remains obligated under the note.
On November 10, 2005, Mink executed and delivered to Sebring Capital Partners, Limited Partnership (Sebring), the original lender, a note and mortgage, in the principal amount of $151,200. Mink defaulted on the note and mortgage by failing to make the payment due on September 1, 2013, and all payments thereafter. On October 16, 2013, Ocwen Loan Servicing, LLC (Ocwen), the servicer of the loan, provided notice of the default and an opportunity to cure. After the default was not cured, U.S. Bank filed a foreclosure complaint on April 25, 2014. Ocwen verified the complaint as the servicer for U.S. Bank. Attached to the complaint were copies of the mortgage and the note bearing a blank indorsement by Sebring. In the complaint, U.S. Bank alleged that it was the holder of the note and thus entitled to enforce the terms of the note and mortgage pursuant to section 673.3011(1), Florida Statutes (2014).
At the ensuing bench trial, U.S. Bank introduced the following documents into evidence through testimony of a senior loan analyst for Ocwen, who testified that Ocwen had been servicing Mink's loan since 2006: the original note bearing the blank indorsement by Sebring; the original mortgage; an assignment of mortgage between Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Sebring, and U.S. Bank; a notice of default dated October 16, 2013, from Ocwen to Mink; Ocwen's Collection Notes for Mink's loan; a Bailee letter dated January 17, 2014, from Ocwen tendering the original note to counsel for U.S. Bank; and the payment history and judgment figures for Mink's loan. However, the trial court did not admit the Power of Attorney between U.S. Bank and Ocwen.
Mink moved for an involuntary dismissal, arguing in part that U.S. Bank failed to prove its standing as the holder of the note at inception of the action because there was no evidence of an agency relationship between U.S. Bank and Ocwen. The trial court agreed and dismissed the action. As further explained below, because the bank filed suit and the record supports that it had the note in its possession when it did so, any purported deficiency in evidentiary support for its agency relationship with its servicer is immaterial to the issue of standing.
This court reviews de novo an order granting a motion for involuntary dismissal. Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016) (citing Allard v. Al-Nayem Int'l, Inc., 59 So. 3d 198, 201 (Fla. 2d DCA 2011) ). This court "must view the evidence and all inferences of fact in a light most favorable to the nonmoving party" and will "affirm an involuntary dismissal only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Deutsche Bank Nat'l Tr. Co. v. Applewhite, 213 So. 3d 948, 950 (Fla. 4th DCA 2017) (quoting Deutsche Bank Nat'l Tr. Co. v. Huber, 137 So. 3d 562, 563–64 (Fla. 4th DCA 2014) ). This court also reviews de novo a trial court's determination on standing. St. Clair v. U.S. Bank Nat'l Ass'n, 173 So. 3d 1045, 1046 (Fla. 2d DCA 2015) (citing Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 2014) ).
A party seeking foreclosure must establish standing both at the time the complaint was filed and at trial. Dickson v. Roseville Props., LLC, 198 So. 3d 48, 50-51 (Fla. 2d DCA 2015) (citing May v. PHH Mortg. Corp., 150 So. 3d 247, 248-49 (Fla. 2d DCA 2014) ). "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 [i]ndorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff's status as the holder of the note." Nationstar Mortg., LLC v. Johnson, 250 So. 3d 808, 810 (Fla. 2d DCA 2018) (quoting Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) ).
Here, U.S. Bank filed its complaint alleging its status as the holder of the note and submitted a note with a blank indorsement. A "holder" is defined as a "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." § 671.201(21)(a) (emphasis added). The parties dispute whether U.S. Bank proved that it had possession of the original note at the time the complaint was filed and thus was entitled to enforce the note as a holder at inception; possession of the original note at the time of trial is uncontested.
Because U.S. Bank entered into evidence the original note containing the same blank indorsement as the copy attached to the complaint, it presented sufficient evidence to establish it had possession of the note at the time the complaint was filed and thus had standing as a holder of the note. See Ortiz v. PNC Bank, Nat'l 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 ... 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.").
Mink argues, for the first time on appeal, that the copy of the note attached to the complaint was not in the same condition as the original note introduced at trial because the copy "was marked up by an unknown party." This argument lacks merit because a pertinent discrepancy in the condition of the note is one in the indorsements. See Waters v. Wilmington Tr., Nat'l Ass'n for ARLP Securitization Tr. Series 2015-1, 268 So. 3d 722, 722-23 (Fla. 4th DCA 2018) ("The note attached to the complaint was not made payable to the plaintiff, and it contained no indorsements. ... Unlike the note attached to the complaint, the original note was indorsed in blank."); Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1136 (Fla. 5th DCA 2017) ("[T]he copy of the note Wells Fargo attached to its complaint lacked the indorsement found on the original note admitted into evidence; therefore, the copy does not prove standing at the time suit was filed.").
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Moreover, there was no evidence or testimony presented below reflecting that U.S. Bank lacked possession of the note at the time it filed suit. Therefore, this combination of evidence was sufficient to establish that U.S. Bank had possession at the time the complaint was filed and thus had standing to bring the foreclosure action as the holder of the note. See Bank of N.Y. Mellon v. Burgiel, 248 So. 3d 237, 239-40 (Fla. 5th DCA 2018) (holding that the combination of the copy of the note attached to the complaint and the later-filed original sufficed to establish the bank's standing); Bank of N.Y. Mellon ex rel. Registered Holders of Alt. Loan Trust 2007-OA7 v. Heath, 219 So. 3d 104, 106 (Fla. 4th DCA 2017) (holding that the trial court erred in granting an involuntary dismissal because the bank established its standing as a holder); Wells Fargo Bank, N.A. v. Ousley, 212 So. 3d 1056, 1058 (Fla. 1st DCA 2016) (same); U.S. Bank Nat'l Ass'n v. Clarke, 192 So. 3d 620, 622 (Fla. 4th DCA 2016) (reversing a judgment finding lack of standing because the original note introduced into evidence at trial matched the copy of the note attached to the complaint and there was no evidence presented reflecting a lack of possession). Even without the benefit of the inference described in Ortiz, U.S. Bank provided separate proof of its entitlement to enforce the note as the holder through the testimony of the senior loan analyst for Ocwen, the Collection Notes, and the Bailee letter. The Bailee letter sent from Ocwen to counsel for U.S. Bank—dated January 17, 2014—established that U.S. Bank had possession of the original note before U.S. Bank filed its foreclosure complaint against Mink on April 25, 2014. The Collection Notes further established that the original note was sent to counsel for U.S. Bank prior to filing suit as reflected in the entries on January 17, 2014, and February 14, 2014.
Viewing the evidence and all inferences of fact in a light most favorable to U.S. Bank, U.S. Bank presented sufficient evidence of its entitlement to enforce the note as the holder at inception. Therefore, we reverse the trial court's involuntary dismissal and remand for further proceedings.
Reversed and remanded.
KHOUZAM, C.J., and KELLY, JJ., Concur.