Gorel v. Bank of N.Y. Mellon, 5D13–3272.
| Decision Date | 08 May 2015 |
| Docket Number | No. 5D13–3272.,5D13–3272. |
| Citation | 165 So.3d 44 |
| Parties | Adiel GOREL and FLCA Tropical Holdings, LLC, Appellants, v. The BANK OF NEW YORK MELLON, etc., Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Rodriguez, of Foreclosure Defense Law Firm, PL, Tampa, for Appellants.
Marc James Ayers, of Bradley Arant Boult Cummings LLP, Birmingham, Alabama, for Appellee.
Following a non-jury trial, Adiel Gorel and FLCA Tropical Holdings, LLC, appeal the trial court's final judgment of foreclosure in favor of The Bank of New York Mellon, as successor trustee under Novastar Mortgage Funding Trust, Series 2005–2 (“Bank”). On appeal, Mr. Gorel and FLCA contend that Bank lacked standing to bring the foreclosure action and failed to comply with the conditions precedent to foreclosure. We agree that Bank failed to prove standing and reverse.
Mr. Gorel executed a promissory note, promising to pay $176,168 plus interest to Novastar Mortgage, Inc. At the same time, he also executed a mortgage securing the note. Both the note and the mortgage identified the lender as Novastar.1 On January 19, 2010, Novastar's loan servicer sent a default notice to Mr. Gorel for failing to pay amounts due under the note. The notice stated that “the Breach must be cured by close of business on February 17, 2010 by sending a payment ... in the sum of $3,627.95.” When Mr. Gorel failed to cure the default, Bank filed its complaint to foreclose the mortgage. The complaint included copies of the note and mortgage, and an assignment of mortgage assigning the mortgage to Bank from MERS.2 The copy of the note attached to the complaint was not indorsed. In its complaint, Bank alleged that it was the owner and holder of the note and mortgage by virtue of an assignment of mortgage and that all conditions precedent to the acceleration had been met. Mr. Gorel and FLCA answered and filed affirmative defenses, challenging Bank's standing and whether the notice required by paragraph 22 of the mortgage was provided.
At trial, the court admitted the original note and mortgage, the default letter sent to Mr. Gorel, and Mr. Gorel's payment history into evidence. The original note offered by Bank, unlike the copy attached to the complaint, contained an undated special indorsement from Novastar, not to Bank, but to “JP Morgan Chase Bank, National Association, as Trustee for Novastar Home Equity Loan Asset Backed Certificates, Series 2005–2.” After reserving ruling on Mr. Gorel's motion for involuntary dismissal, the trial court entered a final judgment of foreclosure in favor of Bank. This appeal follows.
“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.”
McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (). Under section 673.3011, Florida Statutes (2013), a person entitled to enforce the note and foreclose on a mortgage is the 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, Florida Statutes. Thus, “[t]he party that holds the note and mortgage in question has standing to bring and maintain a foreclosure action.” Deutsche Bank Nat'l Trust Co. v. Lippi, 78 So.3d 81, 84 (Fla. 5th DCA 2012) (citing Philogene v. ABN Amro Mortg. Grp. Inc., 948 So.2d 45, 46 (Fla. 4th DCA 2006) ). “The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010). If the note does not name the plaintiff as the payee, the note must bear a special indorsement in favor of the plaintiff or a blank indorsement. Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Additionally, a plaintiff can submit “an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note” in order to establish standing. Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012). “A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.” Sosa v. U.S. Bank Nat'l Ass'n, 153 So.3d 950, 951 (Fla. 4th DCA 2014).
“A trial court's decision as to whether a party has satisfied the standing requirement is reviewed de novo.” Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla.2011). Here, the trial court erred in finding that Bank had standing to foreclose. To prove standing, Bank attached an assignment of mortgage to its complaint, showing an assignment from MERS to Bank. Although the assignment was dated prior to the initiation of the foreclosure action, it was never admitted into evidence at trial or discussed by Bank's only witness. At trial, Bank's witness testified in conclusory fashion that Bank was entitled to enforce the note. However, that testimony failed to establish when Bank took possession of the note or that it acquired the note prior to the commencement of the foreclosure action. Further, no testimony or other evidence explained why the note attached to the complaint had no indorsements, while the original note offered into evidence contained an undated indorsement to Chase, but not to Bank.
To continue reading
Request your trial
-
Green Tree Servicing, LLC v. Milam
...letter's variance from paragraph twenty-two will not preclude a foreclosure action "[a]bsent some prejudice." Gorel v. Bank of New York Mellon, 165 So.3d 44 (Fla. 5th DCA 2015). In so stating, the court relied on Allstate Floridian Ins. Co. v. Farmer, 104 So.3d 1242, 1248–49 (Fla. 5th DCA 2......
-
PNC Bank Nat'l Ass'n v. Roberts
...can show no prejudice because there is no evidence they attempted to cure the default at any point. See Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 47 (Fla. 5th DCA 2015) (citing Allstate Floridian Ins. Co. v. Farmer, 104 So.3d 1242, 1248–49 (Fla. 5th DCA 2012) ...
-
Sunshine Children's Learning Ctr. v. Waste Connections of Fla.
... ... ny notice required or ... permitted to be given by ... Defendant using Bank of America's online bill payment ... service which ... demonstrate that it incurred damages. See Gorel v. Bank ... of New York Mellon , 165 So.3d 44, 47 ... ...
-
Aquasol Condo. Ass'n, Inc. v. HSBC Bank USA, Nat'l Ass'n
...not in possession of the note who is entitled to enforce under section 673.3091, Florida Statutes.’ " (quoting Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015) ) " ‘If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank......
-
Chapter 2-2 Notice of Default and Opportunity to Cure
...address as required by mortgage did not prejudice the defendant, and may have even benefitted him); Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015) (holding notice of default that set a date to cure default 29 days from date of letter instead of 30 days did not prejudice......
-
Chapter 3-2 Statute of Limitations
...notice of default was sent to a valid alternate address which "may have even benefitted" the borrower); and Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015) (holding notice of default that set a date to cure default 29 days from date of letter instead of 30 days as requir......
-
Chapter 3-2 Statute of Limitations
...notice of default was sent to a valid alternate address which "may have even benefitted" the borrower); and Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 47 (Fla. 5th DCA 2015) (holding notice of default that set a date to cure default 29 days from date of letter instead of 30 days approach ......
-
Chapter 12-1 Introduction
...1036 (Fla. 3d DCA 2016).[161] Caraccia v. U.S. Bank, Nat'l Ass'n, 185 So. 3d 1277, 1280 (Fla. 4th DCA 2016) (quoting Gorel v. Bank of NY, 165 So. 3d 44, 47 (Fla. 5th DCA 2015) ("Absent some prejudice, the breach of a condition precedent does not constitute a defense to the enforcement of an......