Nationstar Mortgage, LLC v. U.N. Kee Wing
210 So. 3d 216
| Fla. Dist. Ct. App. | 2017Background
- Nationstar Mortgage, LLC substituted in and amended a foreclosure complaint after acquiring the loan from the original lender and sought to reestablish a lost promissory note.
- The original complaint included a copy of the note and mortgage; Nationstar introduced an affidavit of lost note attaching a copy of the note with a blank indorsement and alleged it acquired possession on or before Feb. 22, 2013.
- The affidavit stated the note could not be found after diligent search, the loss was not due to transfer or lawful seizure, and Nationstar would indemnify borrowers against future claims.
- A Nationstar witness testified (without objection) that loss of possession was not due to transfer or lawful seizure.
- After Nationstar rested, appellees moved for involuntary dismissal; the trial court granted the motion, reasoning (apparently) that Nationstar failed to prove standing and failed to reestablish the lost note.
- The Fifth District reversed, holding Nationstar had presented prima facie evidence of standing and satisfied statutory elements for reestablishing a lost note at the time of the involuntary dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nationstar established a prima facie case to reestablish a lost note under § 673.3091 | Nationstar relied on a lost-note affidavit and witness testimony showing it was entitled to enforce the note when possession was lost, loss was not from transfer/seizure, and the note could not reasonably be obtained | Appellees argued Nationstar failed to prove standing and failed to meet statutory requirements to reestablish the lost note | Reversed: viewed in plaintiff’s favor, the affidavit and testimony met § 673.3091 elements and established a prima facie case |
| Whether Nationstar had standing to foreclose | Nationstar pointed to the original complaint’s note copy, admitted mortgage assignment to Nationstar (pre-amendment), and the affidavit showing possession before the amended complaint | Appellees contended Nationstar had not proved it owned or held the note and thus lacked standing | Reversed: admitted assignment, copy of original note, and affidavit showed prima facie standing at time of motion |
| Whether the trial court could evaluate credibility/weight on involuntary dismissal | Nationstar argued credibility/weight cannot be assessed on a motion for involuntary dismissal and the court must accept evidence and inferences favorable to plaintiff | Appellees relied on perceived inconsistencies and overall insufficiency of evidence to support dismissal | Held for Nationstar: trial court erred by performing comparative credibility/weight analysis at motion stage; only after full trial may it weigh evidence |
| Whether erroneous admission of evidence would bar a prima facie showing | Nationstar argued that even if some evidence was later deemed inadmissible, it nonetheless produced enough to avoid involuntary dismissal | Appellees argued the foundational evidence (affidavit/testimony) was insufficient or inadmissible | Held for Nationstar: appellate decision did not decide admissibility, but even assuming some error, the evidence then before the court sufficed to preclude involuntary dismissal |
Key Cases Cited
- Deutsche Bank Nat’l Tr. Co. v. Baker, 199 So. 3d 967 (Fla. 4th DCA 2016) (standard of review for involuntary dismissal is de novo)
- Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So. 3d 562 (Fla. 4th DCA 2014) (standards for review cited)
- Luciani v. Nealon, 181 So. 3d 1200 (Fla. 5th DCA 2015) (motion for involuntary dismissal admits all facts and reasonable inferences favoring nonmovant)
- Day v. Amini, 550 So. 2d 169 (Fla. 2d DCA 1989) (same principle on involuntary dismissal)
- Wright v. Emory, 41 So. 3d 290 (Fla. 4th DCA 2010) (court must view evidence in light most favorable to plaintiff)
- Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So. 2d 205 (Fla. 2d DCA 1995) (trial court may not consider witness credibility/weight on involuntary dismissal)
- Hack v. Estate of Helling, 811 So. 2d 822 (Fla. 5th DCA 2002) (involuntary dismissal proper only when evidence fails to establish prima facie case)
- Wimbledon Townhouse Condo. I Ass’n v. Wolfson, 510 So. 2d 1106 (Fla. 4th DCA 1987) (prima facie standard discussed)
- Fed. Nat’l Mortg. Ass’n v. McFadyen, 194 So. 3d 418 (Fla. 3d DCA 2016) (statutory requirements to reestablish lost note)
- Home Outlet, LLC v. U.S. Bank Nat’l Ass’n, 194 So. 3d 1075 (Fla. 5th DCA 2016) (lost-note affidavit or testimony may meet § 673.3091)
- Figueroa v. Fed. Nat’l Mortg. Ass’n, 180 So. 3d 1110 (Fla. 5th DCA 2015) (standards for proving reestablishment and standing)
- Deutsche Bank Nat’l Tr. Co. v. Kummer, 195 So. 3d 1173 (Fla. 2d DCA 2016) (trial court may weigh evidence when rendering final judgment but not on involuntary dismissal)
- Beauchamp v. Bank of N.Y., 150 So. 3d 827 (Fla. 4th DCA 2014) (error in admitting hearsay may not preclude a finding that sufficient prima facie evidence existed)
- Peuguero v. Bank of Am., N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015) (same principle regarding sufficiency despite evidentiary error)