Gonzalez v. BAC Home Loans Servicing, L.P.
180 So. 3d 1106
| Fla. Dist. Ct. App. | 2015Background
- Maria and Boris Gonzalez appealed a final foreclosure order entered for GreenTree Servicing, LLC on a Countrywide-originated loan.
- Bank of America filed the June 16, 2009 foreclosure complaint as successor to several Countrywide entities; GreenTree was later substituted as plaintiff after an interest transfer.
- The copy of the original promissory note filed with the complaint showed two undated indorsements, the second indorsed to a blank transferee.
- At trial GreenTree produced the original note and an assignment from MERS to Bank of America dated March 6, 2010, and presented testimony from a former Bank of America employee now employed by GreenTree.
- The witness testified from business records (not personal knowledge) and did not introduce business records establishing when Bank of America obtained possession or when the indorsements were made; GreenTree also offered no records showing the timing of transfers prior to the complaint filing.
- The trial court entered foreclosure; the appellate court reviewed whether GreenTree proved standing to foreclose at the time the complaint was filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose at time complaint filed | GreenTree argued it was the holder because the original note was indorsed in blank and witness testimony established possession | Gonzalez argued plaintiff failed to prove possession/indorsement timing and thus lacked standing when complaint was filed | Court held plaintiff failed to prove standing; evidence did not show Bank of America held the note or that indorsement occurred before filing |
| Admissibility of witness testimony based on business records | GreenTree relied on its employee’s testimony about business records to establish transfers/possession | Gonzalez argued testimony without the underlying business records is insufficient | Court held such testimony insufficient where business records proving timing were not admitted |
| Sufficiency of filed copy of note and assignment | GreenTree relied on original note and later assignment introduced at trial | Gonzalez noted the copy filed with complaint lacked indorsements and assignment was dated after complaint | Court found the filed copy and belated assignment did not establish standing at filing time |
| Legal standard for who may enforce the note | GreenTree asserted statutory holder status under Fla. Stat. § 673.3011 based on possession | Gonzalez contended GreenTree/BofA did not meet statutory elements | Court applied § 673.3011 and required proof of holder or entitlement at complaint filing; plaintiff did not meet standard |
Key Cases Cited
- Schmidt v. Deutsche Bank, 170 So.3d 938 (Fla. 5th DCA 2015) (testimony about business records without admitting those records is insufficient to prove standing)
- Boyd v. Wells Fargo Bank N.A., 143 So.3d 1128 (Fla. 4th DCA 2014) (burden is on party seeking foreclosure to prove standing at time complaint filed)
- Tomlinson v. GMAC Mortg., 173 So.3d 1121 (Fla. 2d DCA 2015) (reversing foreclosure where witness did not testify when plaintiff obtained indorsed note and records did not show timing)
- Sosa v. U.S. Bank Nat’l Ass’n, 153 So.3d 950 (Fla. 4th DCA 2014) (reversing where witness did not testify to date of relevant indorsement)
- Sas v. Fed. Nat’l Mortg. Ass’n, 112 So.3d 778 (Fla. 2d DCA 2013) (reversing where witness testimony was inadmissible hearsay and necessary business records were not introduced)