Deutsche Bank Nat'l Trust Co. v. Russell

• Decision Date: 27 July 2022
• Docket Number: 1D21-1552
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2003 MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003-NC5, Appellant, v. Claude RUSSELL; Jeffery Ramsey; Susie Ramsey; Donald Whitaker; Unknown Tenant #1; and Unknown Tenant #2, Appellees.
• Court: Florida District Court of Appeals

343 So.3d 649

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2003 MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003-NC5, Appellant,
v.
Claude RUSSELL; Jeffery Ramsey; Susie Ramsey; Donald Whitaker; Unknown Tenant #1; and Unknown Tenant #2, Appellees.

No. 1D21-1552

District Court of Appeal of Florida, First District.

July 27, 2022

Gillian D. Williston of Troutman Pepper Hamilton Sanders LLP, Virginia Beach, Virginia, for Appellant.

Antoinette Burgess of Law Offices of Fred Tromberg, Jacksonville, for Appellee.

Osterhaus, J.

The borrowers in this foreclosure case stopped paying on their promissory note in 2003, within months of signing the note and mortgage agreement on a Jacksonville house. Deutsche Bank National Trust Company (DBNTC) filed a foreclosure case in late 2003. But the case languished for more than 15 years after a bankruptcy and other fits and starts. When the case ultimately went to trial, the borrowers together with subsequent owners and interest-holders in the property challenged DBNTC's standing to foreclose. The trial court agreed with them and dismissed DBNTC's foreclosure case. We reverse, however, because the pooling and servicing agreement (PSA) evidence put forth by DBNTC proved its standing to foreclose in 2003 when the Complaint was first filed.

I.

Jeffrey and Susie Ramsey entered a loan agreement to buy a house in Jacksonville in February 2003. Jeffery Ramsey executed a Promissory Note in the amount of $68,000.00 to New Century Mortgage Corporation. The Note was secured by a Mortgage executed the same day by both Jeffery and Susie Ramsey, husband and wife.

By August 2003, the Ramseys stopped paying on their loan. In response, DBNTC filed a foreclosure complaint in November 2003 alleging default and seeking to foreclose on the mortgage. Its Complaint included an action to reestablish a lost promissory note. The note attached to the Complaint lacked indorsements demonstrating that the note had been transferred to DBNTC. DBNTC's lost note affidavit attested that the original promissory note was not in its custody, that the attached copy of the note was true and correct, and that DBNTC possessed and was entitled to enforce the note when the loss occurred. An assignment of Mortgage was also attached to the Complaint showing a conveyance from New Century to DBNTC, dated February 12, 2003. Contemporaneous with filing the Complaint, DBNTC filed a notice of lis pendens.

Shortly after the 2003 Complaint was filed, the original borrower was declared bankrupt and the foreclosure action was stayed. Years later—in December 2011—DBNTC filed a second foreclosure complaint. The sole count of the 2011 Complaint was for mortgage foreclosure. The

343 So.3d 651

Complaint asserted that Appellant was the owner and holder of the mortgage and note; the Mortgage was in default as of January 1, 2004; the full amount payable under the note was due and owing; and Jimmy Russell was the new record owner of the subject property via quitclaim deed.

Unlike the original complaint, the 2011 Complaint did not mention a lost note and attached the same copies of the note and mortgage that had been attached to the...