Verizzo v. The Bank of New York Mellon
2017 Fla. App. LEXIS 8921
Fla. Dist. Ct. App.2017Background
- In April 2008 The Bank of New York (as successor trustee) sued David Verizzo to reestablish a lost note and foreclose a mortgage; the complaint attached the mortgage but not the note.
- Verizzo pleaded lack of standing as an affirmative defense, placing on the bank the burden to prove standing both at filing and at trial.
- At trial (July 2015) the bank offered a servicer representative and documents: a power of attorney (2014), a copy of the note (2006) without any indorsement, the mortgage, payment history, and a 2008 default notice naming a different creditor.
- The bank previously had filed (pretrial) a document purporting to be the original note with an undated special indorsement to "J.P. Morgan Chase Bank, as Trustee," but that indorsed original was not admitted at trial; the only admitted note copy showed Novastar as the original holder with no indorsement.
- The bank produced no testimony or circumstantial evidence explaining how or when it acquired the note or that Verizzo’s loan was in the relevant trust; two assignments of mortgage (2008 and 2010) transferred only the mortgage and were dated after the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved standing to enforce the note at the time the complaint was filed | Bank argued it was the proper party as successor trustee and relied on documents (undated indorsement, POA, PSA excerpts, and assignments) | Verizzo argued bank failed to show it held the note at filing and thus lacked standing | Court held bank failed to prove standing at inception; judgment reversed and remanded for involuntary dismissal |
| Whether post‑filing assignments or mortgage‑only assignments establish standing at filing | Bank pointed to mortgage assignments (May 12, 2008 & July 6, 2010) and other trust documents as showing rights | Verizzo argued assignments did not transfer the note and came after filing so cannot prove standing at inception | Court held post‑filing and mortgage‑only assignments do not establish standing at filing |
| Whether an undated indorsement (or belatedly filed original note) can cure standing defects | Bank suggested the indorsed original (filed earlier but not admitted at trial) and PSA excerpts support its claim | Verizzo noted the indorsement was undated and the indorsed document was not in evidence at trial; PSA excerpts were excluded | Court held an undated indorsement produced after filing and not properly admitted cannot establish standing at inception |
| Whether the trial court should have granted involuntary dismissal for lack of standing | Bank relied on the trial record as sufficient; invited exclusion of some documents | Verizzo moved for involuntary dismissal at close of evidence | Court held the motion should have been granted because plaintiff failed to make a prima facie showing of standing at inception; remanded with instruction to enter involuntary dismissal |
Key Cases Cited
- Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097 (Fla. 2d DCA 2016) (reversal required when plaintiff fails to prove standing at inception)
- Dickson v. Roseville Props., LLC, 198 So. 3d 48 (Fla. 2d DCA 2016) (defendant’s affirmative defense places burden on plaintiff to prove standing)
- May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014) (plaintiff must prove standing at filing and at trial)
- Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639 (Fla. 2d DCA 2015) (methods to prove holder status; postfiling power of attorney insufficient)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (ways to prove holder/standing: special or blank indorsement, assignment, or other admissible proof)
- Corrigan v. Bank of Am., N.A., 189 So. 3d 187 (Fla. 2d DCA 2016) (undated or post‑filed indorsement doesn’t establish possession at inception)
- Sorrell v. U.S. Bank Nat'l Ass'n, 198 So. 3d 845 (Fla. 2d DCA 2016) (standing cannot be established by filing a note with undated indorsement months after complaint)
- Stone v. BankUnited, 115 So. 3d 411 (Fla. 2d DCA 2013) (plaintiff may show standing via endorsed note, assignment, equitable transfer, or other evidence)
- McLean v. JP Morgan Chase Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012) (evidentiary means to prove holder status)