Kumar v. U.S. Bank, N.A.
225 So. 3d 888
| Fla. Dist. Ct. App. | 2017Background
- Krishna and Anupama Kumar executed a promissory note secured by a mortgage and later defaulted.
- U.S. Bank, as successor trustee for a mortgage-backed trust (the Trustee), sued to reestablish the note and foreclose; the original complaint alleged ownership but did not attach the note.
- Years later the Trustee filed the original note with an attached allonge containing an undated special indorsement to Washington Mutual.
- At bench trial the Trustee’s servicer representative testified she did not know when the undated indorsement was placed; no other evidence established the indorsement date or chain of transfer.
- The Kumars argued lack of standing; the trial court entered a final judgment of foreclosure in favor of the Trustee.
- The Fifth District reversed, holding the Trustee failed to prove standing at the time the complaint was filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Trustee the holder of the note at filing? | Trustee claimed it was owner and holder despite not possessing the note initially. | Kumars argued the Trustee lacked holder status because indorsement was undated and timing unknown. | Held: Trustee failed to show holder status at filing; insufficient evidence of indorsement date. |
| Could an undated special indorsement establish standing? | Trustee relied on the filed original note with undated allonge to prove standing. | Kumars argued undated indorsement without proof of timing cannot prove standing at inception. | Held: Undated indorsement requires additional evidence to show it occurred before complaint; none provided. |
| Could Trustee rely on nonholder-in-possession theory on appeal? | Trustee asserted standing as nonholder in possession with rights of a holder. | Kumars contended Trustee never pleaded or tried that theory. | Held: Theory was not pleaded or tried by consent and cannot be used; alternatively, even on merits Trustee failed to prove nonholder standing. |
| Did the Trustee prove transfer into the trust via PSA/MLS? | Trustee pointed to PSA cut-off date, a loan schedule, and testimony that loan was purchased/placed in trust by certain date. | Kumars noted absence of evidence tying the Kumars’ loan specifically to the MLS or PSA and no witness to the transfer. | Held: Insufficient proof loan was transferred into trust by filing date; PSA/MLS evidence did not identify the Kumars’ loan. |
Key Cases Cited
- Corrigan v. Bank of Am., N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (plaintiff must have standing when complaint is filed)
- Lloyd v. Bank of N.Y. Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015) (undated indorsement requires proof indorsement occurred before filing)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012) (undated special indorsement on original note insufficient to prove standing)
- Schmidt v. Deutsche Bank, 170 So. 3d 938 (Fla. 5th DCA 2015) (trustee failed to prove possession/holding at time complaint filed where witness lacked knowledge of when note/allonge were obtained)
- May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014) (failure to prove prima facie case of standing warrants dismissal)
- Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884 (Fla. 4th DCA 2016) (ways a nonholder in possession may prove right to enforce: effective transfer, purchase of debt, or valid assignment)