Bank of America, N.A. v. Nash
200 So. 3d 131
| Fla. Dist. Ct. App. | 2016Background
- In 2005 Linda Nash executed a note and mortgage with America’s Wholesale Lender (AWL); Countrywide Home Loans, Inc. later indorsed the note in blank and MERS assigned the mortgage to BAC Home Loans Servicing, LP (BAC).
- BAC sent a default notice in 2010; Nash failed to cure, and Bank of America (successor by merger to BAC) filed foreclosure in 2011 attaching the note, mortgage, acceleration notice, and assignment.
- Nash answered, asserting affirmative defenses that Bank lacked standing and that the note and mortgage were invalid because AWL was both a corporation and a fictitious name and allegedly not authorized/licensed in Florida.
- At trial Bank presented unrebutted testimony from a Bank representative tracing servicing and corporate succession (Countrywide → BAC → Bank) and identifying AWL as a business name used by Countrywide.
- The trial court entered judgment for Nash, finding lack of standing, invalidating the note/mortgage, ordering repayment of all mortgage payments, and awarding attorney’s fees; the Fifth District reversed.
Issues
| Issue | Plaintiff's Argument (Bank) | Defendant's Argument (Nash) | Held |
|---|---|---|---|
| Standing to foreclose | Bank (via merger/successor servicer) held the note or had rights via blank indorsement and continuous servicing | AWL/indorsement defects and corporate/fictitious-name issues meant Bank lacked standing | Reversed trial court: Bank had standing based on unbroken servicing and merger succession |
| Corporate authority / licensing of AWL | Even if AWL lacked separate license/authority, that does not invalidate loan or bar foreclosure; statutory exceptions and provisions limit sanctions | AWL was not incorporated/authorized or licensed in Florida, so note/mortgage void | Rejected Nash’s theory; licensing or lack of certificate of authority did not invalidate the loan or prohibit enforcement |
| Fictitious-name registration (AWL) | No evidence AWL was unregistered; even if unregistered, statute does not impair contract validity or bar defense | Failure to register AWL as fictitious name prevents maintaining suit/invalidates instruments | Rejected: no evidence of nonregistration and statute does not void contracts or bar defense in this context |
| Condition precedent (proof of receipt of default notice) | Note permitted mailing to property address; mailing sufficed regardless of receipt | Bank must prove actual receipt/delivery before acceleration/foreclosure | Rejected: mailing to the address specified in the note satisfied the notice requirement |
| Relief beyond pleadings (refund/order invalidating instruments) | Judgment awarding repayment/invalidating instruments was beyond Nash’s pleadings | Nash asked for invalidation in defenses; trial court granted repayment though not pled | Reversed as to those remedies: trial court lacked jurisdiction to grant relief not pleaded or tried by consent; remanded to enter judgment for Bank |
Key Cases Cited
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012) (standing requires showing plaintiff held or owned the note when complaint filed)
- Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91 (Fla. 2011) (standing determinations reviewed de novo)
- Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So. 3d 81 (Fla. 5th DCA 2012) (holder of the note and mortgage has standing to foreclose)
- Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932 (Fla. 4th DCA 2010) (if plaintiff is not payee, note must have special or blank indorsement to establish enforcement rights)