Roussell v. Bank Of New York Mellon, 4D17-3944

• Decision Date: 06 February 2019
• Docket Number: No. 4D17-3944,4D17-3944
• Parties: Samantha ROUSSELL, Appellant, v. The BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II Trust 2006-AR7 Mortgage Pass-Through Certificates Series 2006-AR7, Appellee.
• Court: Florida District Court of Appeals

263 So.3d 100

Samantha ROUSSELL, Appellant,

v.The BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Successor in Interest to JP Morgan Chase Bank, N.A. as Trustee for Structured Asset Mortgage Investments II Trust 2006-AR7 Mortgage Pass-Through Certificates Series 2006-AR7, Appellee.

No. 4D17-3944

District Court of Appeal of Florida, Fourth District.

[February 6, 2019]

Samantha V. Roussell, Doral, pro se.

Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee.

Per Curiam.

A homeowner appeals a final judgment of foreclosure entered in favor of The Bank of New York Mellon based on the bank's motion for summary judgment. Because material issues of fact remain as to standing and the condition precedent of notice, we reverse and remand for further proceedings.

The bank filed a complaint against the homeowner for mortgage foreclosure and to reestablish a lost note. A copy of the note attached to the complaint listed America's Wholesale Lender as the lender and did not contain any endorsements. The homeowner filed an answer and affirmative defenses, arguing that the bank lacked standing and failed to comply with the condition precedent of adequate notice concerning the default and acceleration.

The bank filed a lost note affidavit from an employee of the servicer, Nationstar Mortgage, LLC. The affidavit stated that the bank acquired the loan from the original lender, America's Wholesale. The affidavit listed several transfers of servicing rights, ending with Nationstar. According to the affidavit, "[t]he Note was lost by the prior holder of the note, and prior to the transfer to Nationstar."

The bank moved for summary judgment. The homeowner opposed the motion, arguing that the bank lacked standing and failed to comply with the condition precedent of notice. After a hearing, the trial court entered a final judgment of foreclosure.

An order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So.2d 126, 130 (Fla. 2000). "Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Frost v. Regions Bank , 15 So.3d 905, 906 (Fla. 4th DCA 2009). "It is the moving party's burden to show, conclusively, the absence of any genuine issue of material fact." Patel v. Aurora Loan Servs., LLC , 162 So.3d 23, 24 (Fla. 4th DCA 2014).

The homeowner raised the issue of standing as an affirmative defense. "Whether a party has standing to bring an action is a question of law to be reviewed de novo." Joseph v. BAC Home Loans Servicing, LP , 155 So.3d 444, 446 (Fla. 4th DCA 2015). A party seeking to enforce a lost note must establish, inter alia, that it was "entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred." § 673.3091(1)(a), Fla. Stat. (2017).

The bank failed to satisfy the requirements of section 673.3091(1)(a). The affidavit from the bank's servicer stated that "[t]he Note was lost by the prior holder of the note, and prior to the transfer to Nationstar," the current servicer. Notably, the affidavit is unclear as to who lost the...