Walsh v. Bank of New York Mellon Trust
219 So. 3d 929
| Fla. Dist. Ct. App. | 2017Background
- Borrowers Patrick and Catherine Walsh appealed a final judgment of foreclosure entered for Bank of New York Mellon Trust.
- At filing, the copy of the promissory note attached to the original complaint had no indorsements; an amended complaint later attached a note with an undated blank indorsement.
- The bank introduced a witness who testified, based on review of business records (a screenshot not admitted into evidence), that the bank possessed the note when the complaint was filed.
- The trial court entered final judgment of foreclosure for the bank; borrowers appealed arguing lack of standing.
- The Fifth DCA reviewed whether the bank proved standing at the inception of the suit by possession of a properly indorsed note.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the bank have standing to foreclose at suit inception? | Bank argued it possessed the note at filing (witness testimony based on business records). | Walsh argued the note attached to the complaint lacked a proper indorsement and later evidence was untimely or inadmissible. | Court held bank failed to prove standing because the note lacked a dated indorsement and witness testimony relied on unadmitted records; judgment reversed and involuntary dismissal ordered. |
Key Cases Cited
- McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (explaining party seeking foreclosure must demonstrate standing)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M Funding Grp., LLC, 75 So. 3d 773 (standing must exist at suit inception and cannot be cured later)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (party must introduce admissible evidence of possession of a properly indorsed note to prove standing)
- Sorrell v. U.S. Bank Nat'l Ass'n, 198 So. 3d 845 (undated indorsement or allonge filed after complaint insufficient to establish standing)
- Cutler v. U.S. Bank Nat'l Ass'n, 109 So. 3d 224 (same principle regarding untimely/insufficient indorsements)
- Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 3d 1106 (testimony about business records not admitted into evidence is insufficient to prove standing)