Bank of N.Y. Mellon v. HOA Rescue Fund, LLC

• Decision Date: 08 June 2018
• Docket Number: Case No. 2D17–3291
• Citation: 249 So.3d 731
• Parties: The BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee FOR The CERTIFICATEHOLDERS CWALT, INC., Alternative Loan Trust 2006–18CB, Mortgage Pass–Through Certificates, Series 2006–18CB, Appellant, v. HOA RESCUE FUND, LLC, as Trustee under the 12122 Fox Bloom Avenue Trust Dated 2/21/2012; Henry Barahona; Yanira Lagos; South Bay Lakes Homeowners Association, Inc.; and Bank of America, N.A., Appellees.
• Court: Florida District Court of Appeals

249 So.3d 731

The BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee FOR The CERTIFICATEHOLDERS CWALT, INC., Alternative Loan Trust 2006–18CB, Mortgage Pass–Through Certificates, Series 2006–18CB, Appellant,

v.HOA RESCUE FUND, LLC, as Trustee under the 12122 Fox Bloom Avenue Trust Dated 2/21/2012; Henry Barahona; Yanira Lagos; South Bay Lakes Homeowners Association, Inc.; and Bank of America, N.A., Appellees.

Case No. 2D17–3291

District Court of Appeal of Florida, Second District.

Opinion filed June 8, 2018

Nancy M. Wallace of Akerman LLP, Tallahassee; William P. Heller of Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman LLP, West Palm Beach, for Appellant.

Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellee HOA Rescue Fund, LLC.

No appearance for remaining Appellees.

BLACK, Judge.

The Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certifcateholders CWALT, Inc., Alternative Loan Trust 2006–18CB, Mortgage Pass–Through Certificates, Series 2006–18CB (the Bank), challenges the involuntary dismissal of its foreclosure action. We reverse and remand for further proceedings.

On June 23, 2009, the Bank filed its notice of lis pendens and foreclosure complaint, naming the mortgagors and the South Bay Lakes Homeowners Association as defendants. A default was entered against the mortgagors. In January 2012, while the Bank's foreclosure action was pending, HOA Rescue Fund, LLC, as Trustee under the 12122 Fox Bloom Avenue Trust dated 2/12/2012, purchased the property at the foreclosure sale resulting from South Bay Lakes Homeowners Association's lien foreclosure action. Importantly, South Bay Lakes' lien was recorded in December 2009, six months after the recordation of the Bank's lis pendens.

Subsequently, HOA Rescue moved to intervene in the Bank's foreclosure action. Over the Bank's objection, HOA Rescue's motion was granted. HOA Rescue then filed an answer and affirmative defenses, raising the Bank's lack of standing as a defense.

A nonjury trial was held in February 2017; only the Bank and HOA Rescue appeared. The Bank noted that HOA Rescue was a third-party purchaser and would therefore be "limited" in what it could object to during trial. The court was asked to take judicial notice of the court file, which it did. Additionally, prior to calling its only witness, the Bank sought to introduce into evidence the original note and mortgage at issue, as well as the assignment of the mortgage, two certified limited powers of attorney, and certified copies of the pooling and servicing agreement (PSA) and mortgage loan schedule for the subject mortgage. Over objection, the court admitted all of the documents.¹ The note bears three indorsements: the first is from Greenpoint Mortgage Funding, Inc., the original lender, to Countrywide Bank, N.A; the second is from Countrywide Bank, N.A., to Countrywide Home Loans, Inc.; and the third is a blank indorsement from Countrywide Home Loans, Inc. The assignment of mortgage, dated July 15, 2009, assigns the note and mortgage from Countrywide Home Loans, Inc., to the Bank, as Trustee, and provides an effective date of May 4, 2009. The PSA was executed on May 1, 2006, with a closing date of May 30, 2006, by and between Countrywide Home Loans, Inc., and the Bank, as Trustee. The PSA identifies mortgage pass-through certificates series 2006–18CB to include the mortgage at issue.

Following the introduction into evidence of these documents, the Bank called one witness, a litigation foreclosure specialist for the loan servicer. The witness testified that the PSA identifies the loan in question by loan number, city, property location, purchase amount, and several other things which all "match." She also testified that the PSA "shows, on the title page, that this involves Countrywide Home Loans, which is one [i]ndorsement on the note and ... speaks for itself," as to the timing of the indorsement.

After all evidence had been presented, HOA Rescue moved for an involuntary dismissal based on the Bank's failure to establish its standing at the inception of the action. The court granted the motion and dismissed the foreclosure action "without prejudice," stating that the Bank could "try again."

The Bank now seeks reversal of the dismissal, arguing both that HOA Rescue was improperly permitted to intervene in the action and participate in trial and that the Bank sufficiently established standing and a prima facie case for foreclosure.

As this court has previously held, while it is preferable for the trial court to enter a final judgment at the conclusion of a nonjury trial, an order granting a motion for involuntary dismissal in such instances is an appealable final order....