227 So. 3d 189
Fla. Dist. Ct. App.2017Background
- In 2007 Mathis executed a promissory note to Homecomings Financial secured by a mortgage recorded to MERS as nominee.
- The note was indorsed by Homecomings to Residential Funding, then to Deutsche Bank, and Deutsche Bank indorsed the note in blank on an allonge that was attached to the note.
- Nationstar acquired the mortgage by assignment and filed a foreclosure complaint in 2014, attaching copies of the note and allonge and later filing the original note in the court file but not the original allonge.
- At bench trial Nationstar introduced the original note and a case specialist testified (over best-evidence objection) that the original allonge existed, bore a blank indorsement, and was in Nationstar’s possession, but Nationstar never produced the original allonge into evidence.
- Mathis moved for involuntary dismissal arguing Nationstar lacked standing because it failed to produce the original allonge; the trial court entered final judgment for Nationstar without specific findings.
- The Second District reversed, holding Nationstar failed to prove standing because it did not submit the original allonge and the specialist’s testimony about the allonge violated the best-evidence rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Nationstar prove standing to foreclose as holder in possession of the note? | Nationstar had standing because it filed the original note and showed possession of the instrument. | Mathis: Nationstar failed to produce the original allonge that evidenced the blank indorsement; without it Nationstar cannot show holder status. | Reversed: Nationstar failed to prove standing because it did not submit the original allonge. |
| Was testimony about the allonge admissible absent the original? | Nationstar relied on witness testimony describing the allonge’s contents. | Mathis objected under the best-evidence rule; original instrument required to prove terms. | Testimony about the allonge was inadmissible under the best-evidence rule without the original. |
| Could Nationstar prevail as a nonholder in possession without the allonge? | Nationstar argued alternative theory as nonholder in possession or waived defect. | Mathis argued insufficient evidence for nonholder theory and no waiver. | Insufficient evidence for nonholder theory; waiver argument rejected. |
| Should judgment be affirmed or case dismissed? | Nationstar urged affirmance. | Mathis sought involuntary dismissal for failure to prove standing. | Court reversed and remanded with directions to enter involuntary dismissal. |
Key Cases Cited
- Caballero v. U.S. Bank Nat'l Ass'n ex rel. RASC 2006-EMX7, 189 So. 3d 1044 (Fla. 2d DCA 2016) (an allonge is part of the note; original allonge must be filed with original note to prove standing)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (ways a non-original lender may establish standing)
- McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012) (standing may be shown by endorsement or affidavit)
- ALS–RVC, LLC v. Garvin, 201 So. 3d 687 (Fla. 4th DCA 2016) (standing requires holder/possessor at filing and trial)
- Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 3d 1106 (Fla. 5th DCA 2015) (standard of review for standing is de novo)
- Heller v. Bank of Am., N.A., 209 So. 3d 641 (Fla. 2d DCA 2017) (discussing need to remove original note/allonge from commerce)
- Rattigan v. Cent. Mortg. Co., 199 So. 3d 966 (Fla. 4th DCA 2016) (best-evidence rule bars testimony about contents when original writing not produced)
- Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884 (Fla. 4th DCA 2016) (distinguishing holder vs nonholder enforcement theories)
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014) (involuntary dismissal appropriate where plaintiff fails to establish standing)