Ham v. Nationstar Mortg., LLC

• Decision Date: 12 May 2015
• Docket Number: No. 1D14–4024.,1D14–4024.
• Citation: 164 So.3d 714
• Parties: David Lee HAM, Jr., Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
• Court: Florida District Court of Appeals

164 So.3d 714

David Lee HAM, Jr., Appellant

v.NATIONSTAR MORTGAGE, LLC, Appellee.

No. 1D14–4024.

District Court of Appeal of Florida, First District.

May 12, 2015.

David Lee Ham, Jr., pro se, Appellant.

Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee.

Opinion

BILBREY, J.

Appellant, David Lee Ham, Jr., appeals the final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC.Because the evidence of the original plaintiff's standing to enforce the note was insufficient to support the final judgment, we reverse.

The lawsuit commenced on February 7, 2008, upon the filing of the complaint by Aurora Loan Services, LLC.In Count I, Aurora alleged that it sought to “reestablish a promissory note under Section 673.3091, Florida Statutes,” that it was the owner of the note, and that it “was in possession of the promissory note and was entitled to enforce it when loss of possession occurred.”Aurora specifically alleged that the “note is not in the custody or control of Plaintiff.”Count II was for foreclosure of the mortgage securing the note.Attached to the complaint was a mortgage naming Appellant as the borrower and 123Loan, LLC as the lender.The mortgage described a note dated August 17, 2004, establishing a debt owed by Appellant to 123Loan for $50,000.00.However, no note (and thus, no indorsement), no assignment of the note, and no affidavit of ownership of the note was attached to the complaint.

In his answer to the complaint, Appellant denied the allegations that Aurora was the owner of the note, that the note was lost subsequent to Aurora's acquisition of it, and that Aurora was entitled to enforce the note at the time it was lost.

More than three years after the original complaint was filed, Aurora moved for leave to amend its complaint and the court granted the motion.Aurora filed its Verified Amended Complaint on June 7, 2011.The amended complaint dropped the lost note count and consisted of only one count, for foreclosure.Aurora alleged that it was the servicing agent, the designated holder of the note, and that the note and mortgage had been in default since October 1, 2007.Attached to the amended complaint was a “Corporate Assignment of Mortgage” dated April 9, 2008, assigning the mortgage “together with the Note” from Mortgage Electronic Registration Systems (“MERS”) to Aurora.Also attached was a copy of the Note, each page of which was stamped with a certification that it was a “true and correct copy of the original” and initialed by an unknown person.The copy of the Note was dated August 17, 2004, and listed 123Loan as the lender and Mr. Ham as the borrower.After the signature page of the Note, an undated indorsement in blank (no designated payee) was attached, signed by the Vice President of 123Loan, LLC.This blank endorsement made the Note payable to the bearer.See§ 673.2051(2), Fla. Stat.

Appellant's answer to the amended complaint denied that Aurora was the holder of the note, denied that the mortgage was in default, and asserted the affirmative defense that Aurora lacked standing to sue for foreclosure, both at the time the original complaint was filed and when the amended complaint was filed.In support of this affirmative defense, Appellant asserted that the “Corporate Assignment of Mortgage” from MERS to Aurora was executed only after the filing of the original complaint.Appellant also challenged the Corporate Assignment because the assignor was MERS, not 123Loan.

By order entered June 12, 2012, upon Aurora's motion for substitution, the court substituted Nationstar as the partyplaintiff.A second Corporate Assignment of Mortgage (from Aurora to Nationstar) was attached to Aurora's motion.The second corporate assignment provided an effective date of July 1, 2012, and addressed only the mortgage, without reference to the note.

Following Appellant's unsuccessful motions to dismiss and for summary judgment, the bench trial took place on August 28, 2014.The final judgment of foreclosure was entered that same day in favor of Nationstar in the amount of $83,566.18.Appellant filed a timely appeal of the final judgment.

This Court's scope of review is somewhat limited by the failure of Appellant to provide a transcript of the bench trial.However, unlike the appeal in Applegate v. Barnett Bank of Tallahassee,377 So.2d 1150(Fla.1979), where no transcript of the bench trial and no “proper substitute” was supplied by the appellant, the scope of our review is not limited to the face of the final judgment.Here, Appellant prepared a statement of the evidence or proceedings and Nationstar submitted objections and proposed amendments to that statement.Fla. R. App. P. 9.200(b)(4).The trial court approved Nationstar's objections and amendments and disapproved Appellant's statement.Accordingly, the evidentiary record before us consists of the approved statement of the evidence and proceedings and the numerous documents admitted into evidence in the record.SeeSoto v. Soto,974 So.2d 403, 404(Fla. 2d DCA2007)(“Thus, as the evidentiary record, we have before us the twelve-page statement of the evidence, along with numerous financial exhibits.”).

The lack of a transcript of the final hearing prevents this Court from reviewing the trial court's exercise of its discretion to admit or exclude evidence such as the testimony of the witness as described in the statement of the evidence, Nationstar's business records, and Appellant's excluded financial records.In order to preserve an evidentiary ruling for appellate review, a contemporaneous objection on the specific legal ground raised on appeal must be made in the trial proceedings, and the objecting party must obtain a ruling by the trial court for the appellate court to review.SeeState v. Currilly,126 So.3d 1244, 1245(Fla. 1st DCA2013).The preservation rule applies in both criminal and civil cases.SeeUniversal Ins. Co. of N. Am. v. Warfel,82 So.3d 47, 64(Fla.2012)(applying rule in civil proceedings);Aills v. Boemi,29 So.3d 1105(Fla.2010)(same).The absence of a transcript of the final hearing precludes our consideration of whether sufficiently specific objections to admission or exclusion of evidence were made so as to inform the trial court of the perceived evidentiary errors.SeeAarmada Protection Systems 2000, Inc. v. Yandell,73 So.3d 893, 898(Fla. 4th DCA2011)(“absent a transcript of the hearing on the motion in limine, we must affirm a ruling [on the motion] that is not fundamentally erroneous on its face.”).

The statement of evidence and proceedings, as approved by the trial court, refers generally to Appellant's objections “to the introduction of evidence” which were “all overruled, including objections as to hearsay, authentication, and relevance.”However, unlike the record in Burdeshaw v. Bank of New York Mellon,148 So.3d 819(Fla. 1st DCA2014), which contained a complete transcript of the final hearing, the bald reference in the statement of evidence in this case provides no particulars of the context or specifics of any hearsay argument, such as the application of the business records exception to the hearsay rule or the qualifications of the witness to testify about any business records under section 90.803(6), Florida Statutes.The record in this case is not sufficient to preserve for appellate review any challenge to the admission or exclusion of documents or testimony at the bench trial.

While particular evidentiary objections and rulings were not preserved for appellate review, Appellant's challenge to the sufficiency of the evidence of Nationstar's standing is cognizable in this appeal.Rule 1.530(e),Florida Rules of Civil Procedure provides that when “an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”SeeBurdeshaw(applyingrule 1.530(e) to appeal of final judgment of foreclosure);Lacombe v. Deutsche Bank Nat'l Trust Co.,149 So.3d 152, 153(Fla. 1st DCA2014)(same).

The standard of this court's review of the sufficiency of the evidence to prove standing to bring a foreclosure action is de novo.Pennington v. Ocwen Loan Servicing, LLC,151 So.3d 52, 53(Fla. 1st DCA2014).

The documents in the record clearly establish that the original plaintiff, Aurora, was not the original lender.The law is firmly settled that “[a]plaintiff who is not the original lender may establish standing to foreclose by submitting a note with a blank or special indorsement, an assignment of the note, or an affidavit otherwise proving his status as a holder of the note.”Pennington v. Ocwen Loan Servicing, LLC,151 So.3d 52, 53(Fla. 1st DCA2014);Focht v. Wells Fargo Bank, N.A.,124 So.3d 308, 310(Fla. 2d DCA2013);McLean v. JP Morgan Chase Bank

N.A.,

79 So.3d 170, 173(Fla. 4th DCA2012).No document fitting the description above was attached to the original complaint when it was filed in 2008.

“[S]tanding must be established at the time of the filing of the foreclosure action.”May v. PHH Mortgage Corp.,150 So.3d 247, 248(Fla. 2d DCA2014);Pennington,151 So.3d at 53;Focht,124 So.3d at 310.A party's standing “is determined at the time the lawsuit was filed” and “a party is not permitted to establish the right to maintain an action...