One West Bank, F.S.B. v. Bauer
159 So. 3d 843
Fla. Dist. Ct. App.2014Background
- One West Bank filed a mortgage foreclosure complaint (Aug 2009) against Christine and Thomas Bauer, alleging Christine executed the promissory note payable to IndyMac and that One West was owner/holder by assignment.
- The Bauers moved to dismiss for lack of standing and filed a multi-count counterclaim; the court bifurcated foreclosure from counterclaim.
- At the nonjury trial One West introduced the original note (endorsed in blank), the mortgage, PSA showing Deutsche Bank as trustee, servicer/designation documents, powers of attorney, and an assignment of mortgage.
- One West’s witness testified One West was servicer, had custody and control of the note when suit was filed, and that the loan was owned by Deutsche Bank as trustee.
- The trial court found One West lacked standing because testimony conflicted with the complaint’s ownership allegations and required proof of ownership, not merely possession.
- The appellate court granted certiorari, concluding the trial court departed from the essential requirements of law by imposing an ownership proof requirement beyond possession of the original endorsed note, and reinstated the foreclosure action.
Issues
| Issue | Plaintiff's Argument (One West) | Defendant's Argument (Bauers) | Held |
|---|---|---|---|
| Whether One West had standing to foreclose | Possession of the original note endorsed in blank (and servicer role) makes One West the lawful holder entitled to enforce the note | One West’s complaint alleged ownership/holder status but testimony conflicted; court should require proof of ownership, not just possession | One West had standing; possession of the endorsed original note sufficed; trial court erred by requiring proof of ownership beyond possession |
| Whether trial court properly imposed additional verification requirements on foreclosure pleadings | Foreclosure law and precedent do not require documentary verification of ownership beyond showing holder/possession | Trial court said conflicting testimony meant complaint allegations were insufficient | Trial court departed from essential requirements of law by imposing an undue verification/ownership proof requirement |
| Whether certiorari relief was appropriate | Erroneous requirement caused irreparable harm not correctable on appeal | Bauers relied on perceived factual conflicts to defend the trial court’s approach | Certiorari granted because the trial court violated clearly established law causing harm not remediable on appeal |
| Effect on foreclosure proceeding | Foreclosure should proceed based on holder/possession showing | Bauers sought dismissal for lack of standing | Foreclosure action reinstated |
Key Cases Cited
- Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369 (Fla. 2d DCA 2012) (certiorari standard and departure-from-law definition)
- Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004) (definition of departure from essential requirements of law)
- Stone v. BankUnited, 115 So.3d 411 (Fla. 2d DCA 2013) (standing to foreclose is held by holder or nonholder in possession with rights of holder)
- Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (same holding on holder/possession rule)
- Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151 (Fla. 2d DCA 2007) (holder or nonholder-in-possession may foreclose)
- Troupe v. Redner, 652 So.2d 394 (Fla. 2d DCA 1995) (standing principles for foreclosure)
- Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla. 2d DCA 2011) (possession of original note endorsed in blank confers holder status)
- BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (possession rule for enforcement of note)
- Deutsche Bank Nat’l Trust Co. v. Prevratil, 120 So.3d 573 (Fla. 2d DCA 2013) (trial court may not impose extra verification requirements on foreclosure pleadings)