WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE PRIMESTAR-H FUND I TRUST, Appellant, v. ROSENA LOUISSAINT, Appellee.
Case No. 5D15-3830
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
Opinion filed February 17, 2017
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
WALLIS, J.,
Appellant, Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as trustee for the Primestar-H Fund I Trust (“Bank“), appeals the trial court‘s final judgment dismissing its foreclosure action against appellee, Rosena Louissaint. Because the trial court erred by finding that Bank lacked standing to foreclose, we reverse and remand for entry of final judgment of foreclosure.
In April 2007, Louissaint executed and delivered a mortgage and note in favor of SunTrust Mortgage, Inc. (“SunTrust“), with MERS acting as nominee. The following series of assignments subsequently occurred: from MERS to SunTrust; from SunTrust to Nationstar Mortgage, LLC; from Nationstar Mortgage, LLC, back to SunTrust; and from SunTrust to Bank. This final assignment from SunTrust to Bank, dated February 8, 2013, assigned only the mortgage, not the accompanying note.
In January 2014, Bank filed a complaint against Louissaint, asserting foreclosure
At a non-jury trial, the parties stipulated to admission of the original note and mortgage, and certified copies of the assignments. A senior litigation associate for the loan servicer testified that a December 21, 2012 purchase agreement showed that SunTrust purchased the loan from NNPL, Trust Series 2012-1. Further, the March 27, 2013 assignment assumption and recognition agreement showed that NNPL, Trust Series 2012-1, then assigned the pool of loans for this sale to Bank. Bank then rested, after which Louissaint moved for dismissal, maintaining that Bank lacked standing because it did not possess the note at the time of filing. After argument from both parties, the trial court reserved ruling on the motion.
The trial court ultimately entered final judgment in Louissaint‘s favor, denying foreclosure and dismissing the case. The judgment contained only two findings: “[Bank] did not have possession of the Note when the case was filed,” and “[t]he Assignment of Mortgage does not confer the Plaintiff with standing to foreclose because it does not assign the Note. As a result, the plaintiff did not have standing to prosecute this case at its inception.”
“The trial court‘s granting of a motion for involuntary dismissal is reviewed de novo.” Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1069 (Fla. 4th DCA), review denied, 177 So. 3d 1263 (Fla. 2015). When reviewing the grant of an involuntary dismissal, we “view the evidence and all inferences of fact in a light most favorable to the nonmoving party,” and affirm “only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Deutsche Bank Nat‘l Tr. Co. v. Clarke, 87 So. 3d 58, 60 (Fla. 4th DCA 2012).
A party seeking foreclosure must prove, by competent, substantial evidence, that it has standing to foreclose at the time of filing the lawsuit. Schmidt v. Deutsche Bank, 170 So. 3d 938, 940-41 (Fla. 5th DCA 2015). “[A] person entitled to enforce the note and foreclose on a mortgage is the holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce under section 673.3091, Florida Statutes.” Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 46 (Fla. 5th DCA 2015) (citing
Here, the trial court improperly relied on Bank‘s lack of actual possession of the note at the time of filing, disregarding Bank‘s statutorily-permitted lost-note count as an exception to actual possession. See Snyder v. JP Morgan Chase Bank, Nat‘l Ass‘n, 169 So. 3d 1270, 1273 (Fla. 4th DCA 2015) (“[N]othing in the statute allows an ‘owner’ to enforce the note without possession, except where the instrument is lost or destroyed.” (citing
In the present case, as is common in recent foreclosure cases, Chase did not attach a copy of the original note to its complaint, but instead brought a count to re-establish a lost note. Later, however, Chase filed with the circuit court the original promissory note, which bore a special endorsement in favor of Chase. Because Chase presented to the trial court the original promissory note, which contained a special endorsement in its favor, it obtained standing to foreclose, at least at some point.
McLean, 79 So. 3d at 174. In the case at issue, Bank followed its action to reestablish the lost note by filing the original note, once found. Thus, Bank established its standing “at some point.” See id. Bank further buttressed its standing by introducing evidence of assignments,2 as well as the mortgage loan purchase agreement and the assignment assumption and recognition agreement, both of which specifically referred to Louissaint‘s loan—showing its path to Bank—and predated the filing of the complaint. Thus, Bank sufficiently established that it had standing to enforce the lost note at the time of filing of the complaint. Cf. id.; Schmidt, 170 So. 3d at 942 (reversing a foreclosure judgment where there existed no evidence of intent to transfer any interest in the note to the bank as trustee and “there was insufficient testimony and evidence that the note and mortgage in this case were actually included as part of the Mortgage Loan Purchase Agreement“).
The mere combination of the copy of the note with the complaint and the later-filed original sufficed to establish Bank‘s standing to foreclose. Wells Fargo Bank, N.A. v. Ousley, 41 Fla. L. Weekly D1409, D1410 (Fla. 1st DCA June 15, 2016) (“A copy of a note with a blank endorsement attached to the complaint, with the original filed at trial, is enough to establish standing for the party that filed the complaint.“). Thus, the trial court erroneously dismissed Bank‘s case for lack of standing. See id. (citing Ortiz v. PNC Bank, Nat‘l Ass‘n, 188 So. 3d 923 (Fla. 4th DCA 2016); Clay Cty. Land Tr. v. JPMorgan Chase Bank, N.A., 152 So. 3d 83 (Fla. 1st DCA 2014)). We reverse the order dismissing the
action and remand with instructions to foreclose the mortgage in question. See Mortg. Elec. Registration Sys., Inc. v. Revoredo, 955 So. 2d 33, 34 (Fla. 3d DCA 2007).
TORPY, J., and JACOBUS, B.W., Senior Judge, concur.