215 So. 3d 633
Fla. Dist. Ct. App.2017Background
- JPMorgan filed a residential mortgage foreclosure complaint (Nov. 2013), attaching a copy of the Note and Mortgage; the copy of the Note bore a blank indorsement.
- JPMorgan’s counsel filed a Certificate of Physical Possession stating JPMorgan possessed the original Note indorsed in blank as of Oct. 9, 2013 (before suit).
- At bench trial JPMorgan’s servicer representative, Daniela Lopez (PennyMac), testified about boarding procedures, recordkeeping, and Washington Mutual’s practices for creating and storing default/breach letters; JPMorgan offered the original Note and loan payment history into evidence.
- The trial court excluded a default/breach letter as hearsay (finding insufficient foundation regarding “Washington Mutual Home Loans”) and credited alleged inconsistencies about transfers/ownership; court entered judgment for Borrowers.
- JPMorgan appealed, arguing it had standing as holder (physical possession of a note indorsed in blank) and that the breach letter was admissible under the business‑records exception.
Issues
| Issue | Plaintiff's Argument (JPMorgan) | Defendant's Argument (Borrowers) | Held |
|---|---|---|---|
| Standing to foreclose | JPMorgan was holder of the Note (physical possession of original note indorsed in blank at filing) | Testimony suggested another entity (PennyMac) owned the Note; uncertain timing of indorsement | Reversed trial court: JPMorgan had standing as holder; ownership irrelevant to holder status |
| Admissibility of breach/default letter | Letter is a business record admissible under §90.803(6); servicer witness sufficiently familiar with creation, mailing, and retention practices | Foundation inadequate because letter was from “Washington Mutual Home Loans” and no specific proof of that unit’s procedures | Reversed trial court: letter admissible; witness’ testimony met business‑records foundation standard |
| Sufficiency to prove pre‑suit notice compliance | The breach letter and boarding records established notice and routine mailing practices | Exclusion of letter left JPMorgan without proof of compliance with mortgage pre‑suit notice condition | Court erred excluding the letter; evidence sufficed to support foreclosure judgment once letter admitted |
| Relevance of timing of indorsement | Timing irrelevant so long as note bore blank indorsement when suit filed | Cross‑examination highlighted uncertainty about when indorsement was placed | Timing immaterial; only possession at filing matters; indorsement before or at filing satisfied holder requirement |
Key Cases Cited
- Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128 (Fla. 4th DCA 2014) (standing to foreclose must exist when suit filed)
- U.S. Bank Nat’l Ass’n v. Becker, 211 So.3d 142 (Fla. 4th DCA 2017) (holder in possession of note indorsed in blank must prove physical possession at time suit filed)
- Tilus v. AS Michai LLC, 161 So.3d 1284 (Fla. 4th DCA 2015) (ownership not required where party is holder)
- Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016) (indorsement timing is irrelevant if blank indorsement present when suit filed)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (elements for business‑records hearsay exception)
- Cayea v. CitiMortgage, Inc., 138 So.3d 1214 (Fla. 4th DCA 2014) (records custodian need not be the preparer; witness familiarity with business practice may suffice)
- Wells Fargo Bank, N.A. v. Balkissoon, 183 So.3d 1272 (Fla. 4th DCA 2016) (servicer representative may lay foundation for admission of default notice created/modeled by third party vendor)