Elizon DB Transfer Agent, LLC v. Ivy Chase Apartments, Ltd., Case No. 2D19-1853

CourtCourt of Appeal of Florida (US)
Writing for the CourtSILBERMAN, Judge.
Parties ELIZON DB TRANSFER AGENT, LLC, Appellant, v. IVY CHASE APARTMENTS, LTD., a Florida limited partnership; Gail Curtis, as personal representative of the estate of John Curtis, deceased; and Gail Curtis, an individual, Appellees.
Docket NumberCase No. 2D19-1853
Decision Date01 May 2020

297 So.3d 641

ELIZON DB TRANSFER AGENT, LLC, Appellant,
v.
IVY CHASE APARTMENTS, LTD., a Florida limited partnership; Gail Curtis, as personal representative of the estate of John Curtis, deceased; and Gail Curtis, an individual, Appellees.

Case No. 2D19-1853

District Court of Appeal of Florida, Second District.

Opinion filed May 1, 2020.


David B. Weinstein and Joseph H. Picone of Greenberg Traurig, P.A., Tampa, and Kimberly S. Mello of Greenberg Traurig, P.A., Orlando, for Appellant.

Ian C. White and Gerald B. Curington of Ausley McMullen, Tallahassee, for Appellees.

SILBERMAN, Judge.

Elizon DB Transfer Agent, LLC (Elizon), seeks review of an order that dismissed its mortgage foreclosure action based on its failure to prove that the original plaintiff had standing at the time of filing of the complaint. The court based its decision on the date difference between the copy of an allonge attached to the complaint and the original, stating that Elizon did not prove that the allonge took effect prior to filing. We conclude that the difference between the copy and the original allonge is immaterial and was explained at trial without contradiction. Thus, the court erred in dismissing the complaint for lack of standing on that basis. Accordingly, we reverse.

Wells Fargo Bank, N.A., filed the foreclosure complaint against Ivy Chase Apartments, Ltd., and John and Gail Curtis (together Ivy Chase) in December 2011. The complaint alleged that Wells Fargo was the owner and holder of the pertinent notes, mortgages, guarantees, assignment documents, and allonges. Wells Fargo attached to the complaint, among other things, a copy of a note with a 2011 allonge that indorsed the note to Wells Fargo from LSREF2 Baron Trust 2011 (Baron Trust). After filing, the Ivy Chase loan was transferred several additional times and each transferee was substituted as the plaintiff in turn, with Elizon being the assignee/plaintiff at the time of trial.

A key issue at trial related to a difference between the execution date on the copy of the allonge attached to the complaint and the original allonge, which was presented at trial. Both contain the same signed indorsement to Wells Fargo, but the copy attached to the complaint shows the execution date as "September __, 2011." The allonge presented at trial had the blank filled in and reflects the execution date as "September 20, 2011." Although both were signed, Ivy Chase asserted that Elizon lacked standing due to the date difference between the copy and the original.

Elizon called two witnesses at trial to establish that, notwithstanding the difference between the copy and the original, the allonge was executed and effective prior to filing of the complaint. Summer Trejo was the senior vice president and in-house counsel at Hudson Advisors, LP, f/k/a Hudson Americas, LLC, the loan servicer and administrator of the Baron Trust. Through Ms. Trejo, multiple documents were admitted establishing the transfer of the Ivy Chase Loan from LAREF2 Baron, LLC (Baron LLC), and Baron Trust to Wells Fargo on September 20, 2011. Among those documents was an assignment agreement between the entities dated September 20, 2011, the original note and allonge, and the copy of the note and allonge that was attached to the complaint. Ms. Trejo testified that she was personally

297 So.3d 643

involved with the transfer of the Ivy Chase loan.

As to the discrepancy between the copy of the allonge attached to the complaint and the original allonge, Ms. Trejo said that the original "would have been signed with all of the other documents in September of 2011" when the Ivy Chase loan was transferred from Baron LLC and Baron Trust to Wells Fargo. Ms. Trejo explained that the documents and signature pages "would've been signed by Baron, LLC, and Baron Trust, and then provided to Wells Fargo['s] counsel ... and they would've been held in escrow pending closing."

Deborah Cussen, the attorney who represented Wells Fargo in the transfer of the Ivy Chase loan, testified that when she received the original allonge for escrow it was in the same condition as the copy attached to the complaint. She explained that the normal procedure was for the assignor to sign the documents and then her firm "would hold the documents undated and then date them when we knew the exact closing date." She confirmed that the transaction closed on September 20, 2011, and said she had no reason to believe that the normal procedure was not followed to date the documents.

Despite the introduction of this evidence, the trial court entered an order involuntarily dismissing the complaint for lack of standing based on the date discrepancy. The court found that Elizon's witnesses lacked personal knowledge of when the 2011 allonge was actually dated. The court reasoned as follows:

By providing a dated version of the allonge, the Plaintiff himself has now called into question the authenticity of the allonge. If a Plaintiff is unable to establish that an allonge took effect prior to the filing of a complaint, that Plaintiff lacks standing to bring the foreclosure action. The evidence submitted at trial clearly demonstrates that the purported original allonge introduced at trial is not in the same condition as the allonge attached to the complaint.

An allonge becomes part of the promissory note. There is a presumption of standing if
...

To continue reading

Request your trial
1 practice notes
  • IVY Chase Apartment Prop. v. IVY Chase Apartments, Ltd., 2D21-436
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 2022
    ...by the trial court or in this appeal, including damages and attorney's fees. Elizon DB Transfer Agent, LLC v. Ivy Chase Apartments, Ltd., 297 So.3d 641, 645-46 (Fla. 2d DCA 2020). After remand, Elizon filed a motion to substitute ICAP as the plaintiff, attaching documents indicating that El......
1 cases
  • IVY Chase Apartment Prop. v. IVY Chase Apartments, Ltd., 2D21-436
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 2022
    ...by the trial court or in this appeal, including damages and attorney's fees. Elizon DB Transfer Agent, LLC v. Ivy Chase Apartments, Ltd., 297 So.3d 641, 645-46 (Fla. 2d DCA 2020). After remand, Elizon filed a motion to substitute ICAP as the plaintiff, attaching documents indicating that El......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT