Perez v. Deutsche Bank Nat'l Trust Co., 4D13–4812.
| Decision Date | 19 August 2015 |
| Docket Number | No. 4D13–4812.,4D13–4812. |
| Citation | 174 So.3d 489 |
| Parties | Manuel C. PEREZ and Theresa Perez, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for Harbor View Mortgage Loan Trust Mortgage Loan Pass–Through Certificates Series 2006–7, Appellee. |
| Court | Florida District Court of Appeals |
Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellants.
Eve A. Cann of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Fort Lauderdale, for appellee.
Appellants appeal a final judgment of foreclosure, arguing that the Bank lacked standing to foreclose. We agree that the Bank failed to prove that it had standing at the time it filed the complaint. Therefore, we reverse.
In August 2008, Deutsche Bank National Trust Company (“the Bank”) filed a complaint against appellants for mortgage foreclosure. After initiating the lawsuit, the Bank then filed a copy of the note, which listed American Brokers as the lender and contained an undated endorsement in blank. Appellants filed an answer and affirmative defenses, challenging the Bank's standing.
During trial, the Bank presented testimony from one witness, Paul Myers, an employee of the loan servicing company Ocwen Financial Corporation. Myers testified that the Bank took ownership of the loan around August 1, 2006, as part of a corresponding pooling and serving agreement (“PSA”). According to Myers, the note was provided to the Bank at the time the trust was created. Myers explained that he knew this because the Bank had the note when Ocwen requested it; however, Myers admitted he did not recall when Ocwen requested the note. He did not know if Ocwen requested the note when the lawsuit was filed. It was his understanding that the Bank held the note as custodian because of the PSA. The PSA was not introduced into evidence.
At the close of the Bank's case, appellants moved for an involuntary dismissal, arguing that the Bank did not have standing because there was no evidence that the Bank had the note when the complaint was filed. Appellants contended that the Bank did not show standing by assignment or equitable transfer and that the PSA was insufficient to establish standing. The Bank argued that it met its burden to establish standing through production of the original note and the PSA, which closed prior to the inception of the action. The court found that the Bank had standing and entered a final judgment in favor of the Bank.
An appellate court reviews de novo the sufficiency of evidence to prove standing in a foreclosure action. Sosa v. U.S. Bank Nat'l Ass'n, 153 So.3d 950, 951 (Fla. 4th DCA 2014). “To establish standing, the plaintiff must submit the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.”
Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012). “A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Id. (citation omitted). Standing is established where a bank possesses and files an original note endorsed in blank. See Harvey v. Deutsche Bank Nat'l Trust Co., 69 So.3d 300, 304 (Fla. 4th DCA 2011).
In the present case, the Bank failed to establish standing because no evidence was introduced showing the note was transferred to the Bank prior to the inception of the lawsuit. A copy of the note was not attached to the complaint, and the endorsement in blank on the original note was undated. Additionally, the PSA was insufficient to establish standing.
In Deutsche Bank National Trust Co. v. Boglioli, 154 So.3d...
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Walton v. Deutsche Bank Nat'l Trust Co.
...to offer proof “showing the note was transferred to the Bank prior to the inception of the lawsuit.” Perez v. Deutsche Bank Nat'l Trust Co., 174 So.3d 489, 491 (Fla. 4th DCA 2015). “An undated indorsement introduced after the complaint was filed, is insufficient, without further evidence, t......
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...(emphasis omitted). Standing may be established from the plaintiff's status as the holder of the note. Perez v. Deutsche Bank Nat'l Trust Co., 174 So.3d 489, 490–91 (Fla. 4th DCA 2015). A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to......
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Jallali v. Christiana Trust, 4D14–2369.
...holder prior to the inception of the lawsuit, it fails to prove its standing to foreclose. See, e.g., Perez v. Deutsche Bank Nat'l Trust Co., 174 So.3d 489, 490–91 (Fla. 4th DCA 2015) (reversing final judgment of foreclosure where bank attempted to prove standing based in part upon an undat......
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Jallali v. Christiana Trust, 4D14–2369.
...holder prior to the inception of the lawsuit, it fails to prove its standing to foreclose. See, e.g., Perez v. Deutsche Bank Nat'l Trust Co., 174 So.3d 489, 490–91 (Fla. 4th DCA 2015) (reversing final judgment of foreclosure where bank attempted to prove standing based in part upon an undat......
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Chapter 4-4 Proving Standing Through an Indorsement
...prior to the bank filing its foreclosure complaint does not, by itself, establish standing); Perez v. Deutsche Bank Nat'l Trust Co., 174 So. 3d 489, 491 (Fla. 4th DCA 2015) (finding testimony that the bank took ownership of the note prior to the filing of the complaint pursuant to a pooling......
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Chapter 4-4 Proving Standing Through an Indorsement
...prior to the bank filing its foreclosure complaint does not, by itself, establish standing); Perez v. Deutsche Bank Nat'l Trust Co., 174 So. 3d 489, 491 (Fla. 4th DCA 2015) (finding testimony that the bank took ownership of the note prior to the filing of the complaint pursuant to a pooling......