Deutsche Bank Nat'l Trust Co. v. Huber, 4D12–3696.

• Citation: 137 So.3d 562
• Decision Date: 23 April 2014
• Docket Number: No. 4D12–3696.,4D12–3696.
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Ameriquest Mortgage Securities, Inc., Asset–Backed Pass–Through Certificates, Series Arsi 2006–M3, Appellant, v. Robin M. HUBER, et al., Appellees.
• Court: Court of Appeal of Florida (US)

137 So.3d 562

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Ameriquest Mortgage Securities, Inc., Asset–Backed Pass–Through Certificates, Series Arsi 2006–M3, Appellant,

v.Robin M. HUBER, et al., Appellees.

No. 4D12–3696.

District Court of Appeal of Florida,

Fourth District.

April 23, 2014.

H. Michael Muniz of Kahane & Associates, P.A., Plantation, for appellant.

Louis B. Vocelle, Jr., of Vocelle & Berg, LLP, Vero Beach, for appellees Robin M. Huber and Thomas Huber.

FORST, J.

In this foreclosure action, Appellant Deutsche Bank National Trust Company appeals the trial court's final judgment granting Appellees Robin and Thomas Huber's motion for involuntary dismissal. Appellant argues that the trial court reversibly erred in two respects: (1) dismissing the action where Appellant presented the original promissory note at trial but moved a copy of the note into evidence; and (2) determining the rights of its servicing agent, a non-party. For the reasons stated below, we find no merit in the former argument, but remand for correction in regard to the latter.

Our standard of review for a motion for involuntary dismissal is de novo. Deutsche Bank Nat'l Trust Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). A motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b) in a non-jury trial can be equated to a motion for directed verdict in a jury trial. See id. at 60 n. 1. “When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Id. at 60. The granting of a motion for involuntary dismissal operates as an adjudication on the merits, unless the court specifies otherwise, finding that the nonmoving party has not shown the right to relief under the applicable facts and law. Fla. R. Civ. P. 1.420(b).

“This court has recognized that possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms.” Clarke, 87 So.3d at 61 (citing Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010)). Because a promissory note is a negotiable instrument, a plaintiff seeking to foreclose on a defendant must produce the original note (or provide satisfactory explanation of the failure to produce) and surrender it to the court or court clerk before the issuance of a final judgment in order to take it out of the stream of commerce. See, e.g., Downing v. First Nat'l Bank of Lake City, 81 So.2d 486, 488 (Fla.1955); Clarke, 87 So.3d at 60–61;Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010).

In the instant case, although Appellant presented the original note to a witness at trial, Appellant only moved a copy of the note into evidence. Contrary to Appellant's arguments, we find this case distinguishable from our decision in Clarke, because here, no record evidence exists to show that Appellant surrendered the original note to the court before the final judgment was issued, nor did Appellant offer a satisfactory explanation as to its failure to do so. See Clarke, 87 So.3d at 59–61. Appellant maintains that it surrendered the note in a “package” to the clerk following the trial and requests this court to make the “logical and equitable” presumption that the original note was in the “package” surrendered to the court. However, this court does not make “logical and equitable” leaps of faith, as it cannot (and should not) make any such determination unsupported by the record before it. Appellant further contends that the trial court's decision should be reversed because “the proof was in the pudding.” This may be true as, for all we know, the original promissory note was in that pudding. Nonetheless, it was not admitted into evidence at trial (although a copy of the note was moved into the record) and there is no indication that the original note has been previously filed with the court or the court clerk. Contra Clarke, 87 So.3d at 59. As such, we affirm the final judgment granting...