Robert K. Walton v. Deutsche Bank National Trust Co., etc.
2016 Fla. App. LEXIS 15547
| Fla. Dist. Ct. App. | 2016Background
- Deutsche Bank sued Walton on July 16, 2008 for foreclosure and to re-establish a lost promissory note; the complaint included copies of the note, mortgage, an undated/unsigned assignment in blank, and an undated signed allonge indorsed in blank by NFS Loans, Inc.
- Walton denied ownership and asserted lack of standing as an affirmative defense, putting standing at issue.
- In December 2014 Deutsche Bank filed the original note and a different allonge showing a special indorsement “Pay to the order of New Century Mortgage” plus a later blank indorsement by New Century; Deutsche Bank abandoned its lost-note allegation at that time.
- At the foreclosure trial Deutsche Bank relied on documentary exhibits, Ocwen servicing records, a 2014 power of attorney, and testimony from Jay Vent (Ocwen Senior Loan Analyst) to prove the trust had acquired the note before suit was filed.
- The trial court admitted the evidence over objection, entered final judgment for Deutsche Bank, and Walton appealed, arguing Deutsche Bank failed to prove standing as of the filing date.
Issues
| Issue | Plaintiff's Argument (Deutsche Bank) | Defendant's Argument (Walton) | Held |
|---|---|---|---|
| Whether Deutsche Bank proved it had the right to enforce the note when the complaint was filed | The indorsements and servicing records plus Vent’s testimony show the trust acquired the loan before suit | The indorsements were undated and evidence/testimony did not prove the transfer predated the complaint | Reversed: plaintiff failed to prove standing at inception of suit |
| Admissibility/weight of post‑complaint undated indorsements | The allonges and later-produced originals cure any gaps; servicing testimony fills date gaps | An undated indorsement introduced after filing cannot, without more, prove standing at filing | Undated indorsements filed after suit are insufficient without independent proof of timing |
| Sufficiency of loan‑servicer analyst testimony to establish timing of indorsement | Vent’s review of electronic trust/boarding records and industry practice supports ownership timeline | Vent lacked personal knowledge of events before 2008 and did not testify to creation dates of indorsements | Testimony from the servicer analyst alone was inadequate to prove standing at filing |
| Remedy when plaintiff fails to prove standing at inception | Plaintiff should be allowed to rely on evidence developed later to sustain judgment | Failure of proof at inception requires reversal and dismissal of complaint (plaintiff may refile) | Reversed and remanded with dismissal; plaintiff may file a new complaint if it wishes to pursue foreclosure |
Key Cases Cited
- Ham v. Nationstar Mortg. LLC, 164 So.3d 714 (Fla. 1st DCA 2015) (denial of ownership and affirmative defense of lack of standing creates contested fact plaintiff must prove)
- Lloyd v. Bank of New York Mellon, 160 So.3d 513 (Fla. 4th DCA 2015) (undated endorsement requires additional evidence to prove it antedated suit)
- Kenney v. HSBC Bank USA, N.A., 175 So.3d 377 (Fla. 4th DCA 2015) (servicer analyst testimony insufficient to establish date of undated blank endorsement)
- Perez v. Deutsche Bank Nat’l Trust Co., 174 So.3d 489 (Fla. 4th DCA 2015) (PSA and servicer testimony do not alone prove trustee held endorsed note at filing)
- Braga v. Fannie Mae, 187 So.3d 1272 (Fla. 4th DCA 2016) (undated endorsement introduced after complaint is insufficient without further evidence)
- Stone v. BankUnited, 115 So.3d 411 (Fla. 2d DCA 2013) (witness testimony may supply missing proof but must be competent and show personal knowledge)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (dismissal does not preclude refiling where plaintiff later acquires standing)
- Morion’s of Chicago, Inc. v. Lira, 48 So.3d 76 (Fla. 3d DCA 2010) (appellate courts generally do not permit retrial on failure of proof; direct remand for dismissal)