Juаn Figueroa (“Appellant”) appeals the trial court’s entry of an in rem final judg
On February 10, 2010, SunTrust Mortgage, Inc., (“SunTrust”) the original plaintiff, filed this foreclosure action, alleging that Appellant had defaulted under the note and mortgage by failing to make -the payment due March 1, 2009, and all subsequent payments. The pleadings were amended repeatedly by both sides, and the case proceeded to trial almost four and a half years later. Fannie Mae was substituted as the plaintiff. The then-active complaint alleged, among other things, the need for plaintiff to reestablish the lost note and mortgage.
On October 7, 2014, a bench trial was held. Jeff Anderson, an employee of Set-erus Incorporated (“Seterus”), was the only witness who testified on behalf of Fannie Mae. Seterus is the loan servicer for Fannie Mae. Anderson nevеr worked for SunTrust. Prior to the direct examination, the trial court asked Anderson the following questions: (i) whether he was familiar with Fannie Mae’s records; (ii) whether Fannie Mae’s records were kept in the ordinary course of its regularly conducted business activity; (iii) whether it was Fannie Mae’s regular prаctice to make and keep the records; (iv) whether the records were made at or near the time of the event recorded; (v) whether the records were made by someone with knowledge; (vi) whether Anderson reviewed the proposed final judgment and a copy of the nоte; (vii) whether the amount in the judgment corresponds with the records; and (viii) whether Fannie Mae complied with the condition precedent listed in paragraph 22. Anderson responded in the affirmative to all of the trial court’s questions. During direct examination, Fannie Mae’s counsel simply confirmed with Anderson that there was a power of attorney between Fannie Mae and Seterus. Fannie Mae did not introduce any documents into evidence during trial.
On cross-examination, Appellant questioned Anderson about his personal knowledge regarding SunTrust’s business practices, SunTrust’s standing to foreclose on the note, the amount of indebtedness owed under the note, SunTrust’s compliance with paragraph 22 of the mortgage, and the circumstances surrounding the lost note. At several points throughout the trial, Appellant moved to dismiss the case on the basis that Fannie Mae hаd failed to establish its prima facie case. Additionally, when Appellant attempted to introduce an exhibit into evidence, the trial court noted that the document was already in “the court file” and did not allow the admission of the evidence.
At the conclusion of trial, the trial court ruled that Fannie Mae established its pri-ma facie case, set a sale date, and subsequently entered an in rem final judgment of foreclosure in favor of Fannie Mae in the amount of $257,906.72.
Appellant correctly argues that Fannie Mae failed to reestablish the supposedly lost nоte. Pursuant to section 673.3091(1), Florida Statutes (2014), a person not in possession of an instrument is entitled to enforce the, instrument if the following conditions are met:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person, who was entitled to enforce the instrument when loss of possession occurred;
(b), The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is riot amenable to service of process. , ;
§ 673.3091(l)(a)-(c), Fla. Stat. (2014). The party seeking to reestablish the note “must prove the terms of the instrument and the [party’s] right to enforce the instrument.”; § 673.3091(2), Fla. Stat. (2014), Additionally, the trial, court must determine that the “person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforcе the instrument.” § 673.3091(2), Fla. Stat. (2014).
On direct examination, not a single question was asked of Anderson about the lost note. On cross-examination, Anderson was unable to confirm that loss of possession was not the result of a transfer or lawful seizure, nor did he have the requisite personal knowledge to testify regarding how the note was lost while in the possession of SunTrust. Anderson testified that at the time the service transferred from SunTrust to Seterus in October 2013, the note was not in the file. According to Anderson, Seterus’ service department contacted SunTrust and Sun-Trust searched for the note and could not find it. SunTrust then completed a lost note affidavit.
To reestablish a lost note, the party seeking to enforce the note may introduce a sworn affidavit asserting that the party “was in possession of the note and was entitled to enforce it when the loss of possession occurred; the loss of thе note was not the result of a transfer or lawful seizure; and [the bank] cannot reasonably obtain possession of the note because of the loss.” Branch Banking & Trust Co. v. S & S Dev., Inc., No. 8:13-cv-1419-T-30TGW,
Appellant also correctly contends that the note cannot be enforced because there was insufficient testimony regarding the terms of the note. A copy of the allegedly lost note was identified by Anderson during his cross-examination testimony; however,- the document was not introduced- into evidence. “A document that was identified but never admitted into evidence as an exhibit is not competent evidence to support a judgment.” Wolkoff v. Am. Home Mortg. Servicing, Inc.,
A “de novo standard of review apрlies when reviewing whether a party has standing to bring an action.” Boyd v. Wells Fargo Bank, N.A.,
Fannie Mae. failed to demonstrate standing to foreclosе. Prior to trial, SunTrust filed several different versions of the note, assignments, and allonge. However, Fannie Mae did not introduce into evidence any version of the alleged lost note, the allonge, or any of the assignments. Even if a copy of the note had been received into evidence, the blank endorsement attached to one copy of the note placed in the court file by Fannie Mae would be insufficient to establish standing at the commencement of suit because the endorsement is undated and cannot be used to prove that SunTrust had standing to sue when this suit wаs initially filed. See, e.g., Green v. JP Morgan Chase Bank, N.A.,
The allonge, which contains an undated endorsement to SunTrust from SunTrust as power of attorney for Global Mortgage, Inc., would not have been sufficient had it been introduced into evidence as there was no evidence or testimony presented to establish the existence of a power of attorney relationship between SunTrust and Global. Fannie Mae additionally filed an assignment of mortgage from Global Mortgage, Inc. to SunTrust dated September 21, 2010; however, this assignment, which was not introduced .into evidence; was dated seven months after the complaint was filed and .was, thus, insufficient to establish standing.
Fannie Mae was required to “tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091” in. order to establish standing. Gee v. U.S. Bank Nat’l Ass’n,
No Proof of Amount Owed on the Note
“It is axiomatic that the party seeking foreclosure must present sufficient evidence to prove the amount owed on the. note.” Wolkoff,
In the instant case, Fanniе Mae did not introduce its business records into evidence. Thus, we do not need to discuss whether Fannie Mae’s sole witness,Anderson, really had sufficient knowledge to lay the business records foundation for the loan documents pursuant to section 90.803(6), Florida Statutes (2014). Appellant relies on Wolkoff for supрort of his argument that Fannie Mae did not present sufficient evidence to prove the amount owed on the note. In Wolkoff, the loan servicer “attempted to prove the amount óf indebtedness by presenting [its witness] with a proposed final judgment — ” Wol-koff,
' Here, in response to the trial court’s inquiry, Anderson confirmed that he reviewed the proposed final judgment in this case and that the amount listed in the proposed final judgment is consistent with the records. However, here, as in Wol-koff, Fannie Mae did not introduce the proposed final judgment into evidence. Remarkably, Fannie Mae also did not introduce any documents, such as the loan payment history, which reflect the current debt owed under the note. Likewise, there was no testimony or ■ documentary evidence at trial regarding or supporting the award of interest, taxes, property inspections, property evaluations, or attorney’s fees, aside from Anderson’s testimony that the figures were accurate and came from Fannie Mae’s business records. Those business records were not introduced into evidence.. Therefore, Fannie Mae did not establish the amount Appellant supposedly owed.
Failure to Prove Compliance with Condition Precedent
Before filing suit to foreclose, mortgage lenders are required to give written notice to the borrower that the loan is in default and the debt is being accelerated, how to cure the default by paying a specified amount, providing at least thirty days within which to cure, and other important information. This is often referred to as a default letter. See, e.g., Gorel v. Bank of New York Mellon,
Involuntary Dismissal Mandated
Fannie Mae failed to reestablish the note, prove standing, the amount owed on the note, and compliance with the conditions precedent in the mortgage. The record does not contain competent, substantial evidence to support the final judgment of foreclosure. Thus, the trial court erred by refusing to grant Appellant’s multiple motions for involuntary dismissal. “[Ajppellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Wolkoff,
Therefore, we reverse the final judgment and remand to the trial court for entry of an order of involuntary dismissal in favor of Appellant.
REVERSED and REMANDED.