Seidler v. Wells Fargo Bank, N.A.
179 So. 3d 416
| Fla. Dist. Ct. App. | 2015Background
- In 2008 Wachovia Bank, N.A. filed to reestablish a lost promissory note under Fla. Stat. § 673.3091 and to foreclose the mortgage; Wachovia alleged it was the owner and entitled to enforce the note but that the note had been lost.
- The copy of the note attached to the 2008 complaint omitted page 3 (the signature/indorsement page); the mortgage referenced the note and listed Irwin Mortgage Corporation as lender.
- The Seidlers denied Wachovia’s ownership/standing and raised the issue throughout the case; summary judgment was denied and the case proceeded to trial after Wells Fargo succeeded Wachovia by merger.
- At trial Wells Fargo produced a copy of the note that included an indorsement in blank dated August 18, 2006 (making the note bearer paper), but Wells Fargo alleged the note was lost and sought reestablishment under § 673.3091.
- Wells Fargo’s sole witness (a J.P. Morgan Chase employee) testified ambiguously about possession, loss, and searches but gave no testimony establishing Wachovia’s possession or entitlement to enforce the note at the time the 2008 complaint was filed.
- The trial court admitted the indorsed copy and entered final (amended) judgment of foreclosure; the district court reversed, finding insufficient evidence to reestablish the lost page or to prove the original plaintiff’s standing when suit was filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff reestablished a lost note under § 673.3091 | Wells Fargo argued it proved the lost page and entitlement to enforce via testimony and the indorsed note copy | Seidlers argued evidence was insufficient to prove the lost page, the circumstances of loss, or Wachovia’s entitlement to enforce when complaint filed | Reversed: insufficient evidence to reestablish lost page or prove Wachovia’s standing when suit was filed |
| Whether plaintiff had standing to foreclose at inception | Wells Fargo contended successor standing through the indorsed note and reestablishment allowed enforcement | Seidlers contended plaintiff lacked standing at the time of filing and cannot cure by later obtaining possession/standing | Held: plaintiff failed to prove original plaintiff’s standing on filing date; later acquisition did not cure defect |
| Admissibility/authenticity of the trial note copy | Wells Fargo relied on trial exhibit (indorsed copy) admitted as business records/evidence | Seidlers challenged authenticity and relevance given the complaint’s unindorsed attachment | Court admitted exhibit but held admission did not cure failure of proof on reestablishment/standing |
| Sufficiency of servicer witness testimony to prove loss/chain | Wells Fargo relied on servicer employee testimony about records and loss search | Seidlers argued servicer witness lacked personal knowledge of 2008 events and Wachovia’s possession/transfer history | Held: witness testimony was too vague and lacking foundation to prove reestablishment or original plaintiff’s right to enforce |
Key Cases Cited
- Ham v. Nationstar Mortg., LLC, 164 So.3d 714 (Fla. 1st DCA) (standard of review and standing requirements for foreclosure)
- Correa v. U.S. Bank, N.A., 118 So.3d 952 (Fla. 2d DCA) (reversal where proof to reestablish lost note was inadequate)
- Farkas v. U.S. Bank, N.A., 165 So.3d 796 (Fla. 4th DCA) (difference between note attached to complaint and indorsed note at trial can defeat standing)
- Kiefert v. Nationstar Mortgage, LLC, 153 So.3d 351 (Fla. 1st DCA) (plaintiff must prove original plaintiff’s right to enforce when complaint was filed)
- Guerrero v. Chase Home Finance, LLC, 83 So.3d 970 (Fla. 3d DCA) (servicer employee testimony insufficient to reestablish lost note)
- McLean v. JP Morgan Chase Bank, N.A., 79 So.3d 170 (Fla. 4th DCA) (standing is crucial element in foreclosure)
- Focht v. Wells Fargo Bank, N.A., 124 So.3d 308 (Fla. 2d DCA) (attachments to complaint control standing analysis at filing)
- Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195 (Fla. 4th DCA) (defect in standing at inception cannot be cured later)