Green v. Green Tree Servicing, LLC
230 So. 3d 989
| Fla. Dist. Ct. App. | 2017Background
- In 2004 Borrower executed a note and mortgage in favor of Countrywide Home Loans, Inc. (CHL, Inc.).
- In 2009 BAC Home Loans Servicing, LP (BAC) filed foreclosure alleging default and attached an unindorsed copy of the note; Borrower denied BAC's ownership and asserted lack of standing.
- Between 2012–2014 plaintiff was substituted twice, culminating with Green Tree (later Ditech) as plaintiff; Green Tree later filed an amended complaint attaching a copy of the note with a blank, undated indorsement.
- At trial Green Tree’s witness (a foreclosure mediation specialist) could not say when the blank indorsement was made and produced no business records proving transfer or chain of title; merger documents showing corporate changes were admitted.
- The trial court entered final judgment for Green Tree; on appeal the issue was whether Green Tree had standing to foreclose based on predecessor entities and mergers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Green Tree had standing to foreclose | Green Tree argued successor/merger relationships (BAC/CHL Servicing) and later-production of an indorsed note established standing | Borrower argued original complaint showed only an unindorsed note payable to CHL, Inc., so plaintiff lacked standing at filing | Reversed: Green Tree failed to prove standing at inception; subsequent indorsement did not cure defect |
| Whether a corporate merger conferred standing | Green Tree argued BAC acquired assets (including the note) via merger, giving standing at filing | Borrower argued merger evidence and testimony did not show transfer of the note or that CHL, Inc. was absorbed | Court held merger proof insufficient; witness testimony did not show note transfer or that the merged entity held the note |
| Whether servicer status establishes standing | Green Tree suggested servicer relationships supported standing | Borrower argued servicer status alone does not make one a holder or entitled to enforce | Court reiterated servicer status alone is insufficient to prove standing to foreclose |
| Whether post-filing evidence (indorsement at trial) cures initial lack of standing | Green Tree relied on indorsed note filed later and admitted at trial | Borrower contended standing is determined at filing and cannot be retroactively established | Court confirmed standing is evaluated at filing; later evidence cannot retroactively establish standing |
Key Cases Cited
- McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012) (standing to foreclose is a crucial element; standing assessed at time lawsuit filed)
- Elsman v. HSBC Bank USA, 182 So. 3d 770 (Fla. 5th DCA 2015) (standard of review for standing is de novo)
- Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44 (Fla. 5th DCA 2015) (identifies persons entitled to enforce a note)
- Walsh v. Bank of N.Y. Mellon Tr., 219 So. 3d 929 (Fla. 5th DCA 2017) (post-filing production of indorsed note does not retroactively establish standing)
- Vogel v. Wells Fargo Bank, N.A., 192 So. 3d 714 (Fla. 4th DCA 2016) (to rely on a merger, surviving entity must prove it acquired the note and mortgage by the merger)
- Fiorito v. JP Morgan Chase Bank, Nat'l Ass'n, 174 So. 3d 519 (Fla. 4th DCA 2015) (merger-based standing requires proof that assets, including the note, transferred)
- Rodriguez v. Wells Fargo Bank, N.A., 178 So. 3d 62 (Fla. 4th DCA 2015) (servicer relationship alone does not establish standing)
- Corrigan v. Bank of Am., N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (if predecessors lacked standing at case inception, later plaintiff cannot establish standing)