David Lee Ham, Jr. v. Nationstar Mortgage, LLC.
164 So. 3d 714
| Fla. Dist. Ct. App. | 2015Background
- Appellant David Ham was sued in 2008 in a foreclosure action filed by Aurora Loan Services, LLC; complaint alleged Aurora owned the note but also alleged the note was not in plaintiff’s custody.
- Original complaint did not attach the promissory note, any indorsement, assignment of the note, or affidavit proving ownership/possession at filing.
- Aurora later amended in 2011, attaching a certified copy of the note with an undated blank indorsement and a Corporate Assignment of Mortgage dated April 9, 2008 (after the February 7, 2008 filing date).
- Nationstar substituted in as plaintiff in 2012; Nationstar relied at trial on testimony from a 2012-hired employee (Joan Osiemo) and business records to prove Aurora had possession prior to the original filing.
- Trial court entered final judgment of foreclosure for Nationstar; appellant appealed arguing predecessor plaintiff lacked standing to enforce the note when suit was filed.
- The First DCA reversed, holding the record did not establish that Aurora had standing to enforce the note as of the original complaint date (Feb. 7, 2008).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to enforce the note at time original complaint was filed | Aurora/Nationstar argued documentary evidence (certified copy of note with blank indorsement and later assignments) and witness testimony established standing | Ham argued Aurora did not possess or hold the note on Feb 7, 2008; assignments were dated after filing and indorsement was undated | Court held standing must be shown as of filing date; evidence here was insufficient to prove Aurora had standing on Feb 7, 2008, so judgment reversed |
| Whether an undated blank indorsement and post-filing assignment cure lack of standing at filing | Plaintiff asserted the blank indorsement and assignments (filed with amended complaint) established holder status | Defendant said undated indorsement and assignments did not prove they predated the original complaint | Held undated blank indorsement and April 9, 2008 assignment did not prove standing at filing; issue remained contested and unresolved in plaintiff’s favor |
| Whether trial testimony from a later-employed witness can supplement deficient documentary record | Plaintiff claimed employee testimony and business records showed predecessor possessed originals prior to filing | Defendant argued witness had no personal knowledge and business-record testimony was unspecified and insufficient | Held testimony as presented in the approved statement of evidence was not competent substantial evidence to cure documentary deficiencies |
| Whether appellate review can consider sufficiency of evidence without a trial transcript | Plaintiff relied on trial record; procedural objections to evidence were not fully preserved | Defendant raised preservation issues due to missing transcript | Held under Fla. R. Civ. P. 1.530(e) sufficiency of evidence may be reviewed on appeal despite missing transcript; court reviewed de novo and reversed |
Key Cases Cited
- Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979) (transcript absence limits appellate review of bench trial rulings)
- Pennington v. Ocwen Loan Servicing, LLC, 151 So. 3d 52 (Fla. 1st DCA 2014) (standard that non-originating plaintiff may prove standing by indorsement, assignment, or affidavit)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (discussion of standing and problems from securitization and recordkeeping)
- McLean v. JP Morgan Chase Bank N.A., 79 So. 3d 170 (Fla. 4th DCA 2012) (party cannot acquire standing retroactively after suit filed)
- Kiefert v. Nationstar Mortgage, LLC, 153 So. 3d 351 (Fla. 1st DCA 2014) (undated indorsement must be shown to predate filing to establish standing at filing)
- Burdeshaw v. Bank of New York Mellon, 148 So. 3d 819 (Fla. 1st DCA 2014) (importance of complete transcript for reviewing evidentiary rulings)
- Stone v. BankUnited, 115 So. 3d 411 (Fla. 2d DCA 2013) (testimonial evidence can, in some circumstances, supply proof of standing when documents are inadequate)
- May v. PHH Mortgage Corp., 150 So. 3d 247 (Fla. 2d DCA 2014) (standing must be established at time foreclosure action is filed)