Stone v. Bankunited
| Decision Date | 19 June 2013 |
| Docket Number | No. 2D12–980.,2D12–980. |
| Parties | Andrea STONE; The Unknown Spouse of Andrea Stone; any and all Unknown Parties Claiming by, Through, Under, and Against the Herein Named Individual Defendant(S) who are not known to be Dead or Alive, Whether said Unknown Parties may Claim an Interest as Spouses, Heirs, Devisees, Grantees, or other Claimants; Tenant # 1; Tenant # 2; Tenant # 3, and Tenant # 4 the names being fictitious to account for parties in possession, Appellants, v. BANKUNITED, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Jacqulyn Mack of The Mack Law Firm, Chtd., Englewood, for Appellant Andrea Stone.
No appearance for remaining Appellants.
Gary M. Carman of GrayRobinson, P.A., Miami, for Appellee.
Andrea Stone appeals a final judgment of foreclosure entered after a nonjury trial. We affirm the decision of the trial court and write to address Stone's argument that BankUnited failed to establish that it had standing to foreclose on the mortgage when it filed the complaint.
On April 16, 2010, BankUnited, a national bank, filed a one-count complaint for mortgage foreclosure to collect $248,569.76 borrowed by Andrea Stone pursuant to a promissory note and secured by Stone's homestead in Sarasota, Florida. As exhibits to the complaint, BankUnited attached a mortgage and a promissory note naming another entity as the lender, BankUnited, FSB, a federal savings bank. On September 17, 2010, BankUnited filed the original note and mortgage, and both of these documents named BankUnited, FSB, as the original lender. The subsequent filing of the original note and mortgage also included an “allonge to promissory note,” which contained a blank endorsement from BankUnited, FSB. The allonge stated on its face that it “is affixed and becomes a permanent part of said Note.” In her answer and affirmative defenses and at trial, Stone challenged BankUnited's standing to maintain the action. After a nonjury trial, the trial court entered a judgment of foreclosure in favor of BankUnited.
When reviewing a judgment rendered after a nonjury trial, the trial court's findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous. Taylor v. Richards, 971 So.2d 127, 129 (Fla. 4th DCA 2007) (citing Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005)).
“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action.” Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011) (citing Servedio v. U.S. Bank Nat'l Ass'n, 46 So.3d 1105 (Fla. 4th DCA 2010)). “Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder.” Id. (citing § 673.3011, Fla. Stat. (2009)). A plaintiff may prove that it has standing to foreclose “through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean–Jacques, 28 So.3d 936, 939 (Fla. 2d DCA 2010); see McLean v. JP Morgan Chase Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (...
To continue reading
Request your trial
-
Houk v. PennyMac Corp.
..." ‘through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.’ " Stone v. BankUnited , 115 So.3d 411, 413 (Fla. 2d DCA 2013) (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean–Jacques , 28 So.3d 936, 939 (Fla. 2d DCA 2010) ); see also ......
-
Phan v. Deutsche Bank Nat'l Trust Co., 2D14–3364.
...foreclose and the existence of an agency relationship must be demonstrated by competent, substantial evidence. See Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (concluding that BankUnited presented competent, substantial evidence that it had standing to foreclose); McCabe v. H......
-
Aquasol Condo. Ass'n, Inc. v. HSBC Bank USA, Nat'l Ass'n
...Bank USA, 157 So.3d 355 (Fla. 4th DCA 2015) ; Lewis v. J.P. Morgan Chase Bank, 138 So.3d 1212 (Fla. 4th DCA 2014) ; Stone v. BankUnited, 115 So.3d 411 (Fla. 2d DCA 2013) ; U.S. Bank Nat. Ass'n v. Knight, 90 So.3d 824, 826 (Fla. 4th DCA 2012) (observing: "Thus, to have standing, an owner or ......
-
Aquasol Condo. Ass'n, Inc. v. HSBC Bank United States, 3D17-352
...Bank USA, 157 So. 3d 355 (Fla. 4th DCA 2015); Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212 (Fla. 4th DCA 2014); Stone v. BankUnited, 115 So. 3d 411 (Fla. 2d DCA 2013); U.S. Bank Nat. Ass'n v. Knight, 90 So. 3d 824, 826 (Fla. 4th DCA 2012)(observing: "Thus, to have standing, an owner or ......
-
Chapter 7-3 Affirmative Defenses
...institutions are not known to incur expenses on behalf of properties for which they do not hold an interest").[51] Stone v. Bankunited, 115 So. 3d 411, 412-13 (Fla. 2d DCA 2013).[52] Bank of New York Trust Co. v. Rodgers, 79 So. 3d 108, 109 (Fla. 3d DCA 2012).[53] See Angelini v. HSBC Bank ......
-
Chapter 7-3 Affirmative Defenses
...institutions are not known to incur expenses on behalf of properties for which they do not hold an interest").[49] Stone v. Bankunited, 115 So. 3d 411, 412-13 (Fla. 2d DCA 2013).[50] Bank of New York Trust Co. v. Rodgers, 79 So. 3d 108, 109 (Fla. 3d DCA 2012).[51] See Angelini v. HSBC Bank ......
-
Chapter 4-4 Proving Standing Through an Indorsement
...198 So. 3d 845, 847 (Fla. 2d DCA 2016); OneWest Bank, FSB v. Cummings, 175 So. 3d 827, 829 (Fla. 2d DCA 2015); Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013); Peuguero v. Bank of Am., N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015); Wells Fargo Bank, N.A. v. Ayers, 219 So. 3d 89 (Fla......
-
Chapter 4-7 Standing as a Non-Holder in Possession
...291 So. 3d 1026, 1031 (Fla. 4th DCA 2020); Scott v. Strategic Realty Fund, 311 So. 3d 113 (Fla. 2d DCA 2020).[65] In Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013), the bank's witness testified that she worked for the original lender at the time that it seized and placed into a......