Clay County Land Trust 08-04-25-0078-014-27 v. JPMorgan Chase Bank, National Ass'n
152 So. 3d 83
| Fla. Dist. Ct. App. | 2014Background
- Buckley borrowed under a note secured by a mortgage; foreclosure followed after default.
- Appellant (subsequent property owner) was not a party to the mortgage and was not the borrower.
- Appellee filed a foreclosure complaint attaching the note and an undated allonge with an endorsement in blank.
- Appellee submitted an affidavit from its VP (Theresa Klingelhofer) relying partly on business records from the prior note owner (EMC Mortgage Corp.) to state the amount due.
- Appellant challenged (1) lack of written notice of default to the borrower, (2) appellee’s standing/possession of the note prior to filing, and (3) hearsay in the affidavit supporting the amount owed.
- Trial court entered summary final judgment of foreclosure; the appellate court affirmed foreclosure but reversed as to the amount due and remanded to determine the correct amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant can challenge failure to give written notice of default under the mortgage | Appellant argued appellee failed to give required written notice and opportunity to cure | Appellee argued appellant lacks standing because not a party to the mortgage | Appellant lacks standing; only borrower could plead nonperformance of condition precedent and failed to do so, resulting in waiver |
| Whether appellee established standing to foreclose (possession of note/assignment) | Appellant contended appellee did not prove it held the note/mortgage before filing | Appellee relied on attached note and allonge with blank endorsement to show possession and standing | Possession of the note with the allonge endorsed in blank sufficed to establish standing at filing |
| Admissibility of Klingelhofer affidavit and underlying business records to prove amount due | Appellant argued affidavit relied on inadmissible hearsay from prior servicer’s records and lacked proper foundation | Appellee asserted objections were waived by not moving to strike and that appellant lacked standing to contest amount | Court found the affidavit contained inadmissible hearsay without foundation; appellant’s objection preserved; appellant had standing to challenge amount (right of redemption). Judgment affirmed except amount remanded |
Key Cases Cited
- Rivera v. Hammer Head Constr. & Dev. Corp., 14 So.3d 1190 (Fla. 5th DCA 2009) (failure to plead nonperformance of a condition precedent waives the condition)
- Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320 (Fla. 5th DCA 2013) (possession of the note can establish standing to foreclose)
- Everhome Mortg. Co. v. Janssen, 100 So.3d 1239 (Fla. 2d DCA 2012) (possession of the note supports foreclosure standing)
- Chem. Residential Mortg. v. Rector, 742 So.2d 300 (Fla. 1st DCA 1998) (possession as basis for standing)
- Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128 (Fla. 4th DCA 2014) (requirement that holder status exist at time of filing)
- Hunter v. Aurora Loan Servs., LLC, 137 So.3d 570 (Fla. 1st DCA 2014) (loan servicer affidavit lacking personal knowledge insufficient to authenticate original holder’s records)
- Focht v. Wells Fargo Bank, N.A., 124 So.3d 308 (Fla. 2d DCA 2013) (standing and holder-in-due-course principles)
- U.S. Bank Nat’l Ass’n v. Knight, 90 So.3d 824 (Fla. 4th DCA 2012) (note and endorsement can show standing)
- Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81 (Fla. 5th DCA 2012) (similar holding on note possession and standing)
- Burdeshaw v. Bank of N.Y. Mellon, 148 So.3d 819 (Fla. 1st DCA 2014) (computer printouts from prior servicer not admissible without custodian or foundational testimony)
- Beauchamp v. Bank of N.Y., Trust Co., N.A., 150 So.3d 827 (Fla. 4th DCA 2014) (property owner has standing to challenge amount affecting right of redemption)