Bank of N.Y. Mellon v. Heath, 4D16–1988
| Decision Date | 26 April 2017 |
| Docket Number | No. 4D16–1988,4D16–1988 |
| Citation | 219 So.3d 104 |
| Parties | BANK OF NEW YORK MELLON, f/k/a Bank of New York, as Trustee, ON BEHALF OF the REGISTERED HOLDERS OF ALTERNATIVE LOAN TRUST 2007–OA7, Mortgage Pass–through Certificates Series 2007–OA7, Appellant, v. Lisa Kay HEATH, et al., Appellees. |
| Court | Florida District Court of Appeals |
Jacqueline Costoya of Kelley Kronenberg, Fort Lauderdale, for appellant.
No appearance for appellees.
Bank of New York Mellon ("Bank") appeals the trial court's order granting Lisa Kay Heath ("Borrower") an involuntary dismissal due to Bank's lack of standing. We find it was error for the court to dismiss the foreclosure action, and reverse for a new trial.
After Borrower defaulted on the loan, Select Portfolio Servicing ("SPS"), on behalf of Bank, filed a foreclosure complaint against Borrower, alleging that Bank was holder of the note and entitled to enforce its terms. A copy of the note was attached to the complaint. Attached to the note was an allonge with three endorsements, one of which was endorsed in blank.
At trial, Bank admitted the original note and allonge into evidence, which were identical to the copies attached to the complaint. A representative of SPS testified that SPS serviced Borrower's loan, and that Borrower's note and allonge were in SPS's possession when the complaint was filed. Bank also admitted two limited power of attorney documents. One of those documents specifically provided SPS the power to initiate foreclosure actions on Bank's behalf, and both documents referenced the pooling and servicing agreement ("PSA").
When Bank attempted to introduce the PSA into evidence, Borrower objected on the grounds that at the SPS representative's deposition, Bank's attorney prohibited Borrower's attorney from questioning the SPS representative about the PSA because Bank would not use the PSA at trial. The court agreed with Borrower and precluded Bank from admitting the PSA, as well as the mortgage loan schedule contained therein.
Borrower later moved for involuntary dismissal, arguing that Bank lacked standing because the PSA, which was not admitted into evidence, was the document that specifically authorized SPS to act on Bank's behalf. Agreeing with Borrower's reasoning, the court granted the motion for involuntary dismissal without prejudice. This appeal followed.
The standard of review for an order granting a motion for involuntary dismissal is de novo. Deutsche Bank Nat'l Tr. Co. v. Huber , 137 So.3d 562, 563 (Fla. 4th DCA 2014). "An involuntary dismissal or directed verdict is properly entered only when the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case on the non-moving party's claim." McCabe v. Hanley , 886 So.2d 1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Helling , 811 So.2d 822, 825 (Fla. 5th DCA 2002) ).
"[S]tanding is a crucial element in any mortgage foreclosure proceeding and must be established at the inception of the lawsuit." U.S. Bank Nat'l Ass'n v. Clarke , 192 So.3d 620, 622 (Fla. 4th DCA 2016). A plaintiff has standing to foreclose if the plaintiff is the holder of the promissory note. See § 673.3011(1), Fla. Stat. (2014). A "holder" is defined as "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." § 671.201(21)(a), Fla. Stat. (2014). In other words, a plaintiff who is not the original payee has standing to foreclose if the plaintiff, before filing the complaint, possesses the note and the note is endorsed to the plaintiff specifically or in blank.
Here, Bank established standing because the original note and blank-endorsed...
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...indorsement is insufficient to provide a party with standing to foreclose.45--------Notes:[21] Bank of New York Mellon v. Heath, 219 So. 3d 104 (Fla. 4th DCA 2017).[22] Fla. Stat. § 673.2014(1).[23] Deutsche Bank National Trust Company as Trustee v. Harris, 302 So. 3d 909, 911-12 (Fla. 4th ......
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Chapter 4-4 Proving Standing Through an Indorsement
...indorsement is insufficient to provide a party with standing to foreclose.42--------Notes:[21] Bank of New York Mellon v. Heath, 219 So. 3d 104 (Fla. 4th DCA 2017).[22] Fla. Stat. § 673.2014(1).[23] PennyMac Corp. v. Frost, 214 So. 3d 686, 688-89 (Fla. 4th DCA 2017).[24] PMT NPL Fin. 2015-1......
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Chapter 4-6 Constructive Possession of the Note
...remains in constructive possession of the note as the holder sufficient to establish standing. See also Bank of N.Y. Mellon v. Heath, 219 So. 3d 104, 106 (Fla. 4th DCA 2017) (". . . even though SPS physically possessed the note at the time the complaint was filed, Bank had standing because ......
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Chapter 4-6 Constructive Possession of the Note
...remains in constructive possession of the note as the holder sufficient to establish standing. See also Bank of N.Y. Mellon v. Heath, 219 So. 3d 104, 106 (Fla. 4th DCA 2017) (". . . even though SPS physically possessed the note at the time the complaint was filed, Bank had standing because ......