U.S. Bank Nat'l Ass'n v. Martinez

• Decision Date: 03 June 2022
• Docket Number: 2D21-1351
• Citation: 341 So.3d 1165
• Parties: U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE on Behalf OF the TERWIN MORTGAGE TRUST 2006-5 ASSET-BACKED SECURITIES, SERIES 2006-5, Appellant, v. Jose L. MARTINEZ; Grace E. Martinez; CIT Loan Corporation f/k/a/ The CIT Group /Consumer Finance; Inc. ; Summerfield/Riverwalk Village Association, Inc.; and Unknown Person(s) in Possession of this Subject Property, Appellees.
• Court: Florida District Court of Appeals

341 So.3d 1165

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE on Behalf OF the TERWIN MORTGAGE TRUST 2006-5 ASSET-BACKED SECURITIES, SERIES 2006-5, Appellant,

v.Jose L. MARTINEZ; Grace E. Martinez; CIT Loan Corporation f/k/a/ The CIT Group /Consumer Finance; Inc. ; Summerfield/Riverwalk Village Association, Inc.; and Unknown Person(s) in Possession of this Subject Property, Appellees.

No. 2D21-1351

District Court of Appeal of Florida, Second District.

June 3, 2022

Allison Morat of Bitman, O'Brien & Morat, PLLC, Lake Mary, for Appellant.

Michael Alex Wasylik of Ricardo & Wasylik, PL, Dade City, for Appellee, Jose Martinez.

No appearance for remaining Appellees.

LUCAS, Judge.

U.S. Bank National Association, as Trustee, on behalf of the Holders of the Terwin Mortgage Trust 2006-5 Asset-Backed Securities, Series 2006-5 (U.S. Bank), appeals from an order of involuntary dismissal entered at the conclusion of a nonjury mortgage foreclosure trial. The defendant below, Jose Martinez, challenged the sufficiency (and, in several instances, the admissibility) of the record evidence that U.S. Bank's servicer, Select Portfolio Servicing (SPS), presented through its one witness.

Although the court found SPS's witness "to be straightforward, genuine and credible," it deemed her testimony insufficient to establish U.S. Bank's right to foreclose on a note that had been lost before SPS began servicing it. The court was troubled by the contradictory business records that were presented, as well as whether SPS's witness could competently testify about a prior servicer's record-keeping and the general practices and regulatory oversight of mortgage loan servicers. At the conclusion of the trial, the court entered the order of involuntary dismissal that is now before us.¹

Like the circuit court, we are not particularly impressed with the evidence U.S. Bank presented to establish its purported right to enforce a lost note. Nevertheless, from our de novo review, Allard v. Al-Nayem Int'l, Inc. , 59 So. 3d 198, 201 (Fla. 2d DCA 2011), there was enough evidence to require the court's rendering of a judgment on the merits. As we summarized in Deutsche Bank National Trust Co. v. Kummer , 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016),

When a party raises a motion for involuntary dismissal in a nonjury trial

the movant admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon favorable to the non-moving party. Where the plaintiff has presented a prima facie case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal.

Day v. Amini , 550 So. 2d 169, 171 (Fla. 2d DCA 1989). A trial court can neither weigh the evidence nor consider the credibility of witnesses when deciding a motion for involuntary dismissal. Capital Media, Inc. v. Haase , 639 So. 2d 632, 633 (Fla. 2d DCA 1994).

We have also remarked (albeit in footnotes) that when a trial court has heard all the evidence in a nonjury trial, and all sides have rested their cases, it is a far better practice for the court to simply enter a judgment, rather than an involuntary dismissal under Florida Rule of Civil Procedure 1.420(b), if the court is inclined to rule in favor of a defendant. See Morroni v. Wilmington Sav. Fund Soc'y FSB , 292 So. 3d 514, 519 n.4 (Fla. 2d DCA 2020) ("We have explained that a defense motion for involuntary dismissal at the close of all the evidence in a nonjury trial—as distinguished from at the close of the plaintiff's case—is not best practice because the trial court can just as easily at that point render a judgment." (citing Kummer , 195 So. 3d at 1175 n.2 )); Ventures Tr. 2013-I-H-R v. Asset Acquisitions & Holdings Tr. , 202 So. 3d 939, 940 n.1 (Fla. 2d DCA 2016) ("[W]e reiterate that it would have been preferable for the circuit court to have rendered a final judgment at the conclusion of this nonjury trial, rather than an order of involuntary dismissal.").

We reiterate that point again²...