248 So. 3d 1205
Fla. Dist. Ct. App.2018Background
- Keli and Thomas Johnson borrowed $236,000 secured by a mortgage and executed a promissory note with multiple endorsements; the last endorsement named "Deutsche Bank Trust Company Americas as Trustee" without specifying the trust.
- RALI (Deutsche Bank Natl. Tr. Co. Americas, as Trustee RALI 2007-QS1) filed foreclosure in 2011 alleging it was the holder of the note; plaintiffs denied and pleaded affirmative defenses including lack of standing.
- RALI produced the original note and filed a motion for summary judgment supported only by an affidavit from a PNC Mortgage employee (servicer) asserting Plaintiff owned and held the note prior to filing.
- The affidavit and attached documents referenced a power of attorney that actually named Ocwen, not PNC, raising doubts about PNC’s authority to act for RALI and about RALI’s possession/ownership of the note.
- The trial court entered final summary judgment for RALI; the Second District reversed, holding RALI failed to conclusively establish standing to enforce the note at summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to enforce the promissory note | RALI: it was the holder/owner of the note and produced the original note and endorsements | Johnsons: RALI did not prove it held or owned the note when suit was filed; servicer affidavit lacked personal knowledge and documentary support | Reversed: RALI failed to conclusively establish standing at summary judgment because its sole affidavit (from servicer employee) lacked personal knowledge and documentary proof of acquisition/possession |
| Sufficiency of servicer affidavit to prove ownership | RALI: servicer affidavit shows Plaintiff owned and held the note | Johnsons: servicer employee was not affiliated with RALI and affidavit did not explain how affiant knew ownership or that servicer held the note for RALI | Held: affidavit insufficient; servicer testimony must show personal knowledge and support for ownership claim |
| Effect of mortgage assignments vs. note assignment | RALI: mortgage assignments demonstrated chain supporting foreclosure rights | Johnsons: assignments only transferred mortgage, not the note; assignments alone insufficient for standing | Held: assignment of mortgage only does not establish standing to foreclose absent note assignment |
| Use of evidence not pleaded (loan modification) at summary judgment | RALI: relied on modification evidence via affidavit to support judgment | Johnsons: modification was not pleaded or attached to complaint; using it at summary judgment was improper | Court: did not rule on preservation; noted potential waiver/preservation issue and absence of hearing transcript could affect appellate review, so did not decide the argument on merits |
Key Cases Cited
- Herendeen v. Mandelbaum, 232 So. 3d 487 (Fla. 2d DCA 2017) (standard of review for summary judgment)
- Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251 (Fla. 2d DCA 2011) (moving party must conclusively refute affirmative defenses to obtain summary judgment)
- Corrigan v. Bank of Am., N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (plaintiff must prove standing to foreclose when contested)
- Peters v. Bank of N.Y. Mellon, 227 So. 3d 175 (Fla. 2d DCA 2017) (servicer employee testimony insufficient absent personal knowledge and documentary support)
- Rosa v. Deutsche Bank Nat'l Tr. Co., 191 So. 3d 987 (Fla. 2d DCA 2016) (servicer testimony did not establish Deutsche Bank's acquisition/possession of the note)
- Houk v. PennyMac Corp., 210 So. 3d 726 (Fla. 2d DCA 2017) (appellate review of summary judgment can proceed without hearing transcript when the record contains all evidence presented)
- Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923 (Fla. 4th DCA 2016) (doctrine allowing inference of possession when original note later filed in same condition as complaint copy)
- Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) (issues not raised below generally cannot be considered on appeal)