Olivera v. Bank of America, N.A.
141 So. 3d 770
| Fla. Dist. Ct. App. | 2014Background
- Olivera, as personal representative, appeals a final summary judgment of foreclosure favoring BOA against Nelsa Plaja.
- BOA claimed standing as successor by merger to BAC Home Loans Servicing and asserted possession of an indorsed note and mortgage ownership.
- Plaintiff-defendant defenses argued BOA lacked standing and failed to satisfy conditions precedent to foreclosure, including notice of acceleration.
- The original complaint was filed in 2009; BAC’s ownership and chain of title were not clearly established in the record at that time.
- An assignment of the mortgage to BAC postdates the foreclosure action; the record shows undated indorsements and uncertain possession chronology.
- The trial court granted summary judgment; on appeal, the court found genuine issues about standing and the notice of acceleration defense warranted remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose | BOA, as BAC's successor, held the note/mortgage and could foreclose. | BAC/BOA lacked proof of possession or chain of title as of filing; standing not established. | Genuine issues of material fact precluded summary judgment; reverse and remand. |
| Satisfaction of condition precedent (notice of acceleration) | BOA did not address notice; imputed compliance with paragraph 22. | Defendant did not receive notice; no admissible evidence showed notice to accelerate. | BOA failed to prove notice; remand and insufficient grounds for summary judgment. |
| Indorsements and holder status | Indorsements could establish holder status and BAC’s possession. | Record failed to show when BAC took possession or chain to Ocwen; indorsements undated. | Material issues remain about holder status; summary judgment improper. |
Key Cases Cited
- Jean-Jacques v. BAC Funding Consortium Inc., 28 So.3d 936 (Fla. 2d DCA 2010) (standing requires proof of holder's title and chain of ownership)
- Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla. 2d DCA 2011) (summary judgment standards; burden to refute defenses applies)
- Focht v. Wells Fargo Bank, N.A., 124 So.3d 308 (Fla. 2d DCA 2013) (standing must exist as of filing foreclosure complaint)
- Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (possession of note with blank indorsement can establish holder status)