Sorrell v. U.S. Bank National Association
198 So. 3d 845
| Fla. Dist. Ct. App. | 2016Background
- Sorrell signed a promissory note and mortgage in favor of BNC Mortgage, Inc., on August 11, 2006; the mortgage named MERS as nominee of the lender.
- U.S. Bank filed a foreclosure complaint on May 19, 2008, alleging it owned and held the note and mortgage but attached documents showing the instruments payable to BNC Mortgage; no allonge or indorsement was attached to the original complaint.
- An amended complaint (Jan. 12, 2009) dropped the lost-note count and attached a recorded assignment of mortgage from MERS to U.S. Bank executed November 24, 2008; the amended complaint still contained no proof of note transfer as of the original filing date.
- The court file later contained the original note and an undated allonge signed by a Jamie Langford, but the allonge was not affixed to the note, undated, and its creation/attachment date and signer’s authority were unexplained.
- U.S. Bank’s witness (a loan verification specialist for the servicer) could not testify when U.S. Bank acquired the note or when the allonge was executed or attached; no admissible evidence established U.S. Bank’s ownership or possession of the note on May 19, 2008.
- The trial court entered final judgment of foreclosure for U.S. Bank; the appellate court reversed because U.S. Bank failed to prove standing at the inception of the case and remanded for dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose when complaint was filed | U.S. Bank argued it owned/held the note and mortgage and later produced the note and undated allonge and mortgage assignment | Sorrell argued U.S. Bank did not own or hold the note/mortgage on the complaint date and offered that the after-filed allonge/assignment cannot cure initial lack of standing | Court held U.S. Bank failed to prove it owned or held the note on the date the complaint was filed; no standing at inception; reversal and dismissal required |
| Whether an undated allonge filed after complaint can establish standing | U.S. Bank relied on the undated allonge and subsequently filed documents to show entitlement | Sorrell argued an undated allonge filed later is legally insufficient to show standing at filing | Court held an undated, unattached allonge filed later cannot establish standing absent other admissible evidence proving transfer pre-filing |
| Whether witness testimony based solely on servicer records suffices to prove standing | U.S. Bank introduced testimony from a servicer employee identifying documents as business records | Sorrell argued that testimony derived only from legally insufficient documents cannot establish standing | Court held such testimony was insufficient when the witness had no personal knowledge of acquisition timing and relied only on deficient documents |
| Effect of post-filing assignment of mortgage on standing | U.S. Bank pointed to recorded assignment of mortgage to support its claim | Sorrell contended the mortgage assignment post-dated the complaint and thus cannot cure lack of standing | Court noted assignment occurred after filing and is not sufficient to establish standing at inception; mortgage assignment cannot substitute for proof of note ownership |
Key Cases Cited
- Tomlinson v. GMAC Mortg., LLC, 173 So. 3d 1121 (Fla. 2d DCA 2015) (reversed foreclosure where indorsement was undated and no evidence showed holder possessed note at filing)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (undated indorsement/allonge filed after complaint insufficient to prove standing)
- May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014) (plaintiff must own or hold the note to have standing to foreclose)
- Cutler v. U.S. Bank Nat'l Ass'n, 109 So. 3d 224 (Fla. 2d DCA 2012) (undated allonge does not establish standing unless shown effective before complaint)
- Farkas v. U.S. Bank, Nat'l Ass'n, 165 So. 3d 796 (Fla. 4th DCA 2015) (reversal where only evidence of holder status was an undated indorsement and assignment post-dated complaint)