Alicia Vogel and Howard Vogel v. Wells Fargo Bank, N.A.
192 So. 3d 714
| Fla. Dist. Ct. App. | 2016Background
- Alicia and Howard Vogel executed a 2004 promissory note and mortgage with World Savings Bank, FSB; Alicia later defaulted.
- World Savings underwent corporate mergers that ultimately resulted in Wells Fargo Bank, N.A. (appellee) becoming the successor of World Savings’ assets and liabilities.
- Appellee filed a foreclosure complaint asserting Fannie Mae owned the note but had authorized Wells Fargo (as servicer) to pursue foreclosure; the copy of the note attached to the complaint showed no endorsements.
- At trial the original note was admitted and bore two undated endorsements on its back: a special endorsement to Fannie Mae (later cancelled) and a blank endorsement; the witness could not say when endorsements were made or cancelled.
- Appellants moved for involuntary dismissal arguing appellee lacked standing at the time the complaint was filed because there was no proof appellee owned or possessed the endorsed note when suit began; the trial court denied the motion and entered foreclosure.
- The Fourth District reversed, holding appellee failed to prove it possessed the properly endorsed note at the inception of the action and failed to prove the note passed to it by merger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff (Wells Fargo) had standing to foreclose at the time the complaint was filed based on possession of the original note endorsed in blank | Wells Fargo: it had possession of the original note (sent to its attorney before filing) and the original bore a blank endorsement, so it was the holder entitled to enforce the note | Vogels: the copy attached to the complaint showed no endorsements and witness could not prove when endorsements were made, so Wells Fargo lacked enforceable possession at filing | Reversed — insufficient evidence that Wells Fargo possessed the note with the blank endorsement when the complaint was filed; possession at trial is inadequate to confer standing at filing |
| Whether standing could be established by corporate mergers transferring the loan to Wells Fargo | Wells Fargo: successor-by-merger acquired World Savings’ assets including the note and mortgage, so standing followed by operation of law | Vogels: merger documents did not specifically list this loan; endorsements to Fannie Mae create possibility that Fannie Mae owned the note at merger, so transfer by merger not established | Reversed — insufficient evidence the note was an asset that passed to Wells Fargo via merger; possibility note belonged to Fannie Mae not rebutted |
Key Cases Cited
- Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128 (Fla. 4th DCA 2014) (standard of review for standing is de novo)
- Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n, 174 So. 3d 519 (Fla. 4th DCA 2015) (surviving entity must prove it acquired the absorbed entity’s assets, including the note)
- Vidal v. Liquidation Props., Inc., 104 So. 3d 1274 (Fla. 4th DCA 2013) (plaintiff must prove standing at time complaint was filed)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012) (requirements to show holder status: payee or special/blank endorsement)
- Joseph v. BAC Home Loans Servicing, LP, 155 So. 3d 444 (Fla. 4th DCA 2015) (standing requires assignment or equitable transfer of note and mortgage before filing)
- Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015) (trial witness can prove the date a bank became owner of the note)
- Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950 (Fla. 4th DCA 2014) (witness testimony can substitute for affidavit of ownership)
- Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010) (possession of original note indorsed in blank is sufficient to establish lawful holder)
- Guzman v. Deutsche Bank Nat’l Trust Co., 179 So. 3d 543 (Fla. 4th DCA 2015) (holder of a note indorsed in blank must have had possession at inception to enforce)