Bank of New York Mellon Trust Company, N.A. v. Dennis M. Conley
188 So. 3d 884
Fla. Dist. Ct. App.2016Background
- Borrower Dennis Conley defended a foreclosure; trial court granted his motion for involuntary dismissal because the bank failed to prove standing to foreclose.
- The plaintiff is styled as The Bank of New York Mellon Trust Company, N.A. fka The Bank of New York Trust Company, N.A. as Successor to JPMorgan Chase Bank N.A. as Trustee for RASC 2004KS4.
- The original promissory note bore special indorsements ending with “JP Morgan Chase Bank, as Trustee,” making any subsequent foreclosing party a nonholder in possession unless it proved entitlement to enforce.
- Plaintiff introduced a PSA showing JPMorgan Chase Bank as trustee and a 2006 Purchase and Assumption Agreement involving JP Morgan Chase & Co. and The Bank of New York Company, Inc., but neither document showed a transfer from the indorsee (JPMorgan Chase Bank, as Trustee) to the plaintiff.
- Plaintiff also offered an officer’s certificate and a 2009 assignment from MERS, but the certificate misidentified parties to the purchase document and the assignment was ineffective because MERS had no interest to assign after the loan was placed in the trust.
- The Fourth District affirmed dismissal, holding plaintiff failed to prove the chain of transactions required to establish its right to enforce the note as a nonholder in possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose as a nonholder in possession | BNY Mellon claimed successor trustee status and relied on the purchase/assumption agreement, PSA, officer’s certificate, and assignment to show it acquired the note or debt | Conley argued plaintiff did not prove any effective transfer or chain connecting the indorsee (JPMorgan Chase Bank, as Trustee) to BNY Mellon | Held: Plaintiff failed to prove the series of transactions showing it acquired the note; no standing; dismissal affirmed |
| Whether the Purchase and Assumption Agreement established plaintiff’s acquisition of the trust assets/note | Plaintiff relied on the 2006 agreement to show purchase of trust assets and successor interest | Defendant noted the agreement’s parties were JP Morgan Chase & Co. and The Bank of New York Company, Inc., not the plaintiff or the indorsee, so it did not connect the chain | Held: The agreement did not connect the indorsee to plaintiff and could not establish plaintiff’s right to enforce the note |
| Whether the officer’s certificate and MERS assignment cured defects in the chain | Plaintiff asserted the officer’s certificate and assignment confirmed transfers and plaintiff’s interest | Defendant argued the officer’s certificate misidentified agreement parties and the MERS assignment was ineffective because MERS lacked an assignable interest after the loan was placed in the trust | Held: Both instruments were insufficient to establish chain; certificate unreliable and assignment ineffective |
Key Cases Cited
- Murray v. HSBC Bank USA, 157 So. 3d 355 (Fla. 4th DCA) (nonholder in possession must prove transaction(s) by which it acquired the note)
- Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA) (methods a nonholder may use to prove right to enforce a note)
- Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2d DCA) (bank failed to show assignment or endorsement from the indorsee to establish standing)