Bank of N.Y. Mellon v. Burgiel, Case No. 5D17–1152
| Decision Date | 25 May 2018 |
| Docket Number | Case No. 5D17–1152 |
| Citation | 248 So.3d 237 |
| Parties | BANK OF NEW YORK MELLON f/k/a Bank of New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007–OH1 Mortgage Pass–Through Certificates Series 2007–OH1, Appellant, v. Julian BURGIEL, Egret's Landing At Lake Mary Homeowners Association, Inc. and Boca Stel, LLC, Appellees. |
| Court | Florida District Court of Appeals |
248 So.3d 237
BANK OF NEW YORK MELLON f/k/a Bank of New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007–OH1 Mortgage Pass–Through Certificates Series 2007–OH1, Appellant,
v.
Julian BURGIEL, Egret's Landing At Lake Mary Homeowners Association, Inc. and Boca Stel, LLC, Appellees.
Case No. 5D17–1152
District Court of Appeal of Florida, Fifth District.
Opinion filed May 25, 2018
Jennifer Lima–Smith and Tara M. McDonald, of Gilbert Garcia Group, P.A., Tampa, for Appellant.
Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Boca Stel, LLC.
No Appearance for Other Appellees.
ORFINGER, J.
In this residential foreclosure case, Bank of New York Mellon, f/k/a Bank of New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007–OH1 Mortgage Pass–Through Certificates, Series 2007–OH1 ("Bank") appeals a final judgment of involuntary dismissal entered in favor of appellee Boca Stel, LLC for lack of standing.1 We reverse and remand.
We review de novo a trial court's ruling on a motion for involuntary dismissal. Wilmington Sav. Fund Soc'y, FSB v. Louissaint, 212 So.3d 473, 475 (Fla. 5th DCA 2017). 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). We similarly review de novo whether a party has standing to bring the foreclosure action. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011) ; Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So.3d 1110, 1115 (Fla. 5th DCA 2015).
In any mortgage foreclosure proceeding, a party seeking foreclosure must demonstrate that it has standing to foreclose. E.g., Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 45–46 (Fla. 5th DCA 2015) ; McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). A foreclosure plaintiff must have standing both at the inception of the foreclosure proceeding as well as at the time of final judgment. Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016) (citing Pennington v. Ocwen Loan Servicing, LLC, 151 So.3d 52, 53 (Fla. 1st DCA 2014) ). To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a 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 or section 673.4181(4), Florida Statutes. § 673.3011, Fla. Stat. (2014). A holder is defined as, inter alia, "[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." Id. § 671.201(21)(a).
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...which he is buying.'") (quoting Spinney v. Winter Park Bldg. & Loan Ass'n, 162 So. 899, 904 (Fla. 1935)); Bank of N.Y. Mellon v. Burgiel, 248 So. 3d 237, 238 n.1 (Fla. 5th DCA 2018) ("The trial court did not err by allowing Boca Stel to participate in the proceedings. Boca Stel took title t......
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...Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015); AS Lily LLC v. Morgan, 164 So. 3d 124 (Fla. 2d DCA 2015); Bank of N.Y. Mellon v. Burgiel, 248 So. 3d 237 (Fla. 5th DCA 2018).[30] Sas v. Federal Nat'l Mortg. Ass'n, 165 So. 3d 849, 851 (Fla. 2d DCA 2015).[31] Azran Miami 2 LLC v. Deutsche Bank ......
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