Appellants, the Seidlers, appeal the amended final judgment of foreclosure, which included the trial court’s finding of standing based on Wells Fargo Bank, N.A.’s reestablishment of a lost note. Because the record does not contain sufficient evidence to support reestablishment of .the lost page of: .the note or to prove ■ the original plaintiffs, standing to enforce the note at the time the foreclosure action was filed, the evidence is insufficient to support the amended final judgment, and we therefore reverse.
“The standard of this court’s review of the evidence to prove standing to bring a foreclosure action is de novo.” Ham v. Nationstar Mortg., LLC,
On December 16, 2008, plaintiff Wacho-via Bank, N.A. filed its complaint to rees
Section 673.3091(2), Floridа Statutes, provides that “[a] person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument.” As proof of the terms of the instrument, Wachovia attached copies of the note аnd mortgage to its complaint.
The copy of the attached note consisted of three pages. Page 1 was dated August 18, 2005, and provided that Jason P. Sei-dler borrowed $185,250.00 from lender Irwin Mortgage Corporation and agreed to repay that amount with interest, under the note’s terms. The last page of the copy of the note attached to the complaint, page 3, contained Mr. Seidler’s undated signature. No indorsement or other indication of negotiation of the note appeared on this cоpy of page 3 of the note. No additional pages were attached. See § 673.2011, 673.2051, Fla. Stat. (methods of transfer of instruments; to whom payable under various types of indorsements).
The copy of the mortgage attached to the complaint was also datеd August 18, 2005, and also listed Irwin Mortgage Corporation as the lender. The mortgage listed both Mr. and Mrs. Seidler as the mortgagors and referenced the promissory note secured by the mortgage.
The Seidlers timely filed their answer to the complaint on December 31, 2008. They denied each of Wachovia’s allegations of ownership of the note, possession at the time the note was lost, and that Wachovia was entitled to enforce the lost note. Likewise, the Seidlers denied the material allegations of the foreclosure count, including Wachovia’s allegation of ownership of the note, and that all conditions precedent to the filing of the foreclosure action had been performed.
Wachovia filed its motion for summary judgment on February 11, 2009, asserting that the note and mortgage entitled Wa-chovia to foreclose to enforce the note. The motion for hearing was set for April 27, 2009, and on that date, copies of the first two pages of the note and the entire mortgage were filed with the court. Howevеr, page 3 of the note was not included. No indorsement of the note or other indication of negotiation of the instrument was filed at this time. The court denied summary judgment and ordered the parties to attend mediation. Mediation did not result in any resolution of the аction.
On February 6, 2013, the trial court granted Wachovia’s motion to substitute Wells Fargo as the plaintiff based upon Wachovia’s merger with Wells Fargo. Standing was still at issue because, as frequently observed, “[o]nce a defendant contests the plaintiffs standing as the prоper party to enforce á note via foreclosure, the plaintiffs right to bring suit on the .note at the requisite time becomes a disputed issue the plaintiff must prove.” Ham,
The bench trial took place on April 2, 2014. “A crucial element in any mortgage foreclosure procеeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank, N.A.,
The record in this case as of the date of the final hearing established that the note was páyablé to Irwin Mortgage. Because the Seidlers had consistently denied Wachovia’s, and then Wells Fargo’s, standing to enforce the note via the foreclosure action, Wells Fargo was required to prove not only its own entitlement to enforce the note on the date'of trial, under any of the provisions of section 673.3011, Florida Statutes, but also that Wachovia was entitled to enforce'the , noté on the date the complaint was filed.
As stated in Ham v. Nationstar Mortgage, LLC, “[t]he law is firmly settled that ‘[a] рlaintiff who is not the original lender may establish standing to'foreclose by submitting a note with a blank or special- indorsement, an assignment of the note, or an affidavit otherwise- proving his status as a holder 'of the noté.”’ Ham,
Wells Fargo’s Exhibit 1 at trial was a copy of the note which, unlike the copy of the note attached to the complaint, included an indorsement in blаnk on the final page. See Farkas v. U.S. Bank, N.A.,
The trial court admitted Exhibit 1 into evidence over the Seidlers’ objections that it was not-authentic, as was within the triаl court’s discretion.
Wells Fargo thus proceeded under sections' 673.8011(3) and 673.391 to enforce the note through foreclosure. The only evidence Wells Fargo presented to support Wachovia’s lost note allegations was the tеstimony of Darrell Dewhurst, Home Equity Research Officer for J.P. Morgan Ohase Bank, N.A Mr. Dewhurst testified that his employer, J.P. Morgan Chase, was the current servicer on the mortgage and now possessed, and held the note.
Q: And was the plaintiff in possession of the note — the third рage of the note prior to the filing of this foreclosure action? '
A: Yes.
Q: At that time, that the plaintiff had possession of the note, did they have the authority to, enforce the, note and mortgage?
A: Yes.
Q: Has the note — have the note and mortgage or the rights under the mortgage been, transferred to any other entity?
A: No.
Q: And has-the plaintiff attempted to search for the original documents:
A.: Yes.
Q: And were they unable to locate the same?
A: Yes.
Q: Does the plaintiff agree to indemnify the defendants from the claims by improper third parties asserting rights under the lost note based upon possеssion of the original?
A: Yes.
It was unclear from Mr. Dewhurst’s answers which plaintiff he meant, Wachovia, in 2008, or the current plaintiff, Wells Fargo. J.P. Morgan Chase was never a party to this action.
On cross examination, when Mr. Seicller asked if Mr. Dewhurst knew when “Wells Fargo” obtained possеssion of the note, Mr. Dewhurst stated that he did not know. Mr. Dewhurst also did not know if the copy of the note .attached to the complaint was the same as the note presented at trial.
The evidence presented by Wells Fargo at trial was insufficient to meet its burden for reestablishing the lost page 8' of the note at issue, and thus insufficient to prove Wachovia’s standing to enforce the lost note on the date the complaint was filed. See Guerrero v. Chase Home Finance, LLC,
Because Wells Fargo failed to prove its claim , to reestablish a lost note and failed to prove its standing, based on the original plaintiffs standing to foreclose; on the mortgage securing that note on the date the complaint was filed, the final judgment of foreclosure and the amended final judgment of foreclosure are REVERSED.
. “A trial mint's ruling on the admissibility of evidence under the business records hearsay exception is reviewed for an abuse of discretion,”. Peuguero v. Bank of Am., N.A.,
. Likewise, Wachovia could not have been entitled to enforce tire note under section 673.3011(2) as "a non-holder in possession of the instrument who has the rights of a holder,” because the complaint specifically alleged that Wachovia was not in possession of the note.
.While Wells Fargo succeeded Wachovia Bank,, N,A, as the plaintiff in this action due to its showing of a merger, J.P. Morgan Chase is not and never was a party .to this action,