Deutsche Bank National Trust Co. v. Kummer
195 So. 3d 1173
| Fla. Dist. Ct. App. | 2016Background
- Karl Kummer executed a promissory note and mortgage on a condominium for a $115,500 loan from BankUnited FSB in February 2006 and defaulted in May 2010.
- Deutsche Bank, as trustee for Harborview Mortgage Loan Trust 2006-8, filed foreclosure in June 2012, alleging the loan had been transferred into the trust (via FDIC processes) and producing the original note with an allonge endorsed in blank, transfer documents, servicing records, and a pooling and service agreement excerpt.
- Kummer contested Deutsche Bank’s standing, challenging an assignment of mortgage (and its notary stamp) and introducing an unauthenticated 248-page document he claimed was a trust prospectus supplement.
- After both sides rested, the trial court granted Kummer’s motion for involuntary dismissal, finding Deutsche Bank failed to prove standing and making credibility/reliability determinations about the assignment, FDIC involvement, and trust inclusion.
- The trial court dismissed Deutsche Bank’s complaint with prejudice; Deutsche Bank appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose / proof loan was in trust | Deutsche Bank introduced original note with allonge, transfer paperwork, servicer/PSA excerpts showing the loan was part of the trust | Kummer argued assignment irregularities, questionable notary stamp, and submitted an unauthenticated prospectus supplement to dispute trust inclusion | Court of Appeal: Deutsche Bank presented more than a prima facie case; trial court improperly weighed credibility and evidence when granting involuntary dismissal — reversal and remand |
| Admissibility and weight of Kummer’s prospectus supplement | N/A (plaintiff did not rely on it) | Kummer offered the document to challenge trust evidence | Court of Appeal noted the document was hearsay, unauthenticated, and should not have been admitted as a business record (trial court erred in admitting it) |
| Proper standard for involuntary dismissal in nonjury trial | Deutsche Bank: motion should be denied if evidence, when viewed most favorably to plaintiff, establishes prima facie case | Kummer: urged dismissal based on perceived evidentiary gaps and contradictions | Court of Appeal: Involuntary dismissal requires accepting evidence and inferences favorable to nonmovant; trial court improperly weighed evidence and credibility, so dismissal was erroneous |
| Timing of ruling on involuntary dismissal | Deutsche Bank: procedural best practice is to rule at close of plaintiff’s case; court could have entered final judgment after full trial | Kummer: sought dismissal after both sides rested | Court of Appeal: noted unusual timing (after both rested) and that best practice is ruling at close of plaintiff’s case, but primary error was improper credibility determinations |
Key Cases Cited
- Allard v. Al-Nayem Int'l, Inc., 59 So. 3d 198 (Fla. 2d DCA 2011) (standard of review for involuntary dismissal in nonjury trial)
- Day v. Amini, 550 So. 2d 169 (Fla. 2d DCA 1989) (movant admits truth of evidence favorable to nonmoving party for involuntary dismissal)
- Capital Media, Inc. v. Haase, 639 So. 2d 632 (Fla. 2d DCA 1994) (trial court may not weigh evidence or consider witness credibility on involuntary dismissal)
- Perez v. Perez, 973 So. 2d 1227 (Fla. 4th DCA 2008) (involuntary dismissal improper where plaintiff has made prima facie case)
- Rodgers v. State, 113 So. 3d 761 (Fla. 2013) (business-records hearsay exception requires custodian testimony or proper certification)
- Advercolor Press, Inc. v. Graphic Sales Innovators, Inc., 307 So. 2d 899 (Fla. 3d DCA 1975) (best practice to rule on involuntary dismissal at close of plaintiff’s case)