248 So. 3d 237
Fla. Dist. Ct. App.2018Background
- Bank of New York Mellon (Bank) filed a residential foreclosure against property later acquired by Boca Stel, LLC; Boca Stel participated as an indispensable party.
- Bank’s complaint included a copy of the promissory note bearing a blank endorsement (payable to bearer).
- At trial Bank produced the original note, which was identical to the copy attached to the complaint.
- Boca Stel moved for involuntary dismissal for lack of standing; the trial court entered a final judgment of involuntary dismissal in Boca Stel’s favor.
- Bank appealed, arguing the copy attached to the complaint plus the original produced at trial established standing.
- The trial court also excluded a limited power of attorney; the appellate court held that exclusion was not outcome-determinative to Bank’s standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bank had standing to foreclose | Bank asserted it held legal and beneficial interest and produced a copy of the note with a blank endorsement plus the original at trial | Boca Stel contended Bank lacked standing and challenged the Bank’s proof of possession/ownership of the note | Bank had standing: copy attached to complaint combined with identical original produced at trial sufficed to establish standing |
| Admissibility of business records | Bank maintained successor servicer’s witness properly authenticated loan records | Boca Stel disputed foundation/authentication | Records were properly admitted; witness showed sufficient familiarity with boarding process to establish trustworthiness |
| Exclusion of limited power of attorney | Bank argued limited POA related to servicer authority (not necessary because Bank itself prosecuted foreclosure) | Boca Stel relied on exclusion to challenge servicer-related authority | Exclusion was not relevant to Bank’s standing and exclusion was an abuse of discretion given Binger factors, but it did not change standing outcome |
Key Cases Cited
- Wilmington Sav. Fund Soc’y, FSB v. Louissaint, 212 So. 3d 473 (Fla. 5th DCA 2017) (standard for reviewing involuntary dismissal and standing established by copy-plus-original method)
- Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91 (Fla. 2011) (standing required in foreclosure actions)
- Figueroa v. Fed. Nat’l Mortg. Ass’n, 180 So. 3d 1110 (Fla. 5th DCA 2015) (standing principles in foreclosure context)
- Bowmar v. SunTrust Mortg., Inc., 188 So. 3d 986 (Fla. 5th DCA 2016) (party must have standing both at inception and at final judgment)
- Pennington v. Ocwen Loan Servicing, LLC, 151 So. 3d 52 (Fla. 1st DCA 2014) (standing at inception requirement)
- Wells Fargo Bank, N.A. v. Ousley, 212 So. 3d 1056 (Fla. 1st DCA 2016) (copy of note with blank endorsement attached to complaint plus original at trial establishes standing)
- Bank of N.Y. Mellon v. Heath, 219 So. 3d 104 (Fla. 4th DCA 2017) (original note with blank-endorsed allonge identical to complaint attachment supports standing)
- Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015) (successor servicer witness may establish admissibility of prior servicer records by showing familiarity with boarding)
- Channell v. Deutsche Bank Nat’l Tr. Co., 173 So. 3d 1017 (Fla. 2d DCA 2015) (standards for admitting predecessor servicer’s loan records)
- Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015) (successor servicer may independently confirm trustworthiness of predecessor’s records)
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (factors trial court must consider before excluding late-disclosed evidence)