Kyser v. Bank of Am., N.A.

• Court: Florida District Court of Appeals
• Writing for the Court: LEWIS, J.
• Citation: Kyser v. Bank of Am., N.A., 186 So.3d 58 (Fla. App. 2016)
• Decision Date: 23 February 2016
• Docket Number: No. 1D15–1027.,1D15–1027.
• Parties: Prapapun KYSER, Appellant, v. BANK OF AMERICA, N.A., et al., Appellee.

186 So.3d 58

Prapapun KYSER, Appellant,

v.BANK OF AMERICA, N.A., et al., Appellee.

No. 1D15–1027.

District Court of Appeal of Florida, First District.

Feb. 23, 2016.

Steven Copus of Copus & Copus, P.A., Shalimar; George M. Gingo and James Orth of Gingo & Orth, P.A., Titusville, for Appellant.

Mary J. Walter of Liebler, Gonzalez & Portuondo, Miami, for Appellee.

LEWIS, J.

Appellant, Prapapun Kyser, appeals the Final Judgment for Foreclosure entered in favor of Appellee, Bank of America, N.A., arguing that Appellee lacked standing to bring the foreclosure action against her pursuant to a mortgage where Countrywide Home Loans, Inc. was the lender. We agree and, therefore, reverse.

We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo. Pennington v. Ocwen Loan Servicing, LLC, 151 So.3d 52, 53 (Fla. 1st DCA 2014). A plaintiff who is not the original lender may establish standing to foreclose by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving its status as holder of the note. Id. Standing must be established at the time of the filing of the foreclosure action, and a bank must also have standing at the time a final judgment is entered. Id.

In this case, the promissory note attached to the foreclosure complaint did not contain any endorsements. Although Appellee subsequently filed what it represented to be the original mortgage and note and although its witness confirmed during the bench trial that a blank endorsement was included on the back of one of the pages of the note, we have explained, " ‘Where the plaintiff files the original note after filing suit, an undated blank endorsement on the note is insufficient to prove standing at the time the initial complaint was filed.’ " Kelly v. Bank of N.Y. Mellon, 170 So.3d 145, 146 (Fla. 1st DCA 2015) (citation omitted). When a plaintiff asserts its standing based on an undated endorsement of the note, it has to show that the endorsement occurred before the filing of the complaint through additional evidence, such as the testimony of a litigation analyst. Id. (reversing the foreclosure judgment because the mortgage resolution associate for a prior servicer of the loan at issue, who testified that the appellee was the holder of the note based on her review of the loan servicer's records, did not establish that the note had been endorsed at the time of the filing of the complaint).

Moreover, while Appellee attached an Assignment of Mortgage to its Complaint, that assignment made no mention or reference to the promissory note. "[A]n assignment of mortgage, even if executed before the foreclosure action commenced, is insufficient to prove standing where the assignment reflects transfer of only the mortgage, not the note." Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (holding that the plaintiff's documents failed to demonstrate standing to foreclose where the undated blank endorsement on the original note, which was filed over a month after the suit was filed, was insufficient to prove standing and where the assignment reflected only an assignment of the mortgage, not the note); see also Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) (holding that the appellee did not prove its standing to enforce the note through evidence of an assignment because the assignment assigned only the mortgage and noting that while its witness testified that the appellee acquired Aurora, the witness did not testify that the appellee acquired the particular note which bore a special endorsement to Aurora); Bristol v. Wells Fargo Bank, Nat'l Ass'n, 137 So.3d 1130, 1132–33 (Fla. 4th DCA 2014) ("Here, the bank filed the original note more than two years after the complaint was filed. The note contained an undated, blank indorsement, which was insufficient to prove standing at the time the complaint was filed.... The bank relies on the ‘Assignment of Mortgage’ ... to support standing, but the ‘assignment of mortgage reflects transfer of only the mortgage, not the note.’ ") (Citation omitted); Lindsey v. Wells Fargo Bank, N.A., 139 So.3d 903, 906 (Fla. 1st DCA 2013) (reversing the summary judgment entered in favor of the appellee where the original note named Option One, not the appellee, as the lender, the original note was not endorsed in blank or otherwise assigned to the appellee, and the assignment applied only to the mortgage, not the note).

During the bench trial, Appellee's witness testified on cross-examination that she believed Appellee came into possession of the original mortgage and promissory note in 2005 when the mortgage was executed. Importantly,...