Onewest Bank, FSB v. Cummings

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

ONEWEST BANK, FSB, )
)
Appellant, )
)
v. ) Case No. 2D14-2397
)
DEBRA CUMMINGS and BENJAMIN )
CUMMINGS, )
)
Appellees. )
________________________________ )

Opinion filed August 12, 2015.

Appeal from the Circuit Court for
Pinellas County; David A. Demers,
Senior Judge.

Tony Perez of Blank Rome LLP,
Tampa, for Appellant.

Michael F. Singer of Singer Law, P.A.,
St. Petersburg, for Appellees.

KELLY, Judge.

OneWest Bank, FSB, appeals from the order dismissing its foreclosure

action against Debra and Benjamin Cummings. Because we conclude OneWest had

standing to foreclose at the time it filed the foreclosure complaint, we reverse.
 The Cummings executed an adjustable rate note and mortgage in favor of

IndyMac Bank in 2006. The loan was later acquired by OneWest and upon the

Cummings' default, OneWest filed its verified complaint to foreclose in 2011. OneWest

attached to its complaint a copy of the mortgage and the adjustable rate note with a

blank endorsement. A separate page with a blank endorsement from IndyMac Bank

was also attached to the complaint; neither endorsement was dated.

At the nonjury trial, Fredrick Denson, a loan analyst for Ocwen Loan

Servicing, LLC, testified that Ocwen serviced the Cummings' loan on behalf of

OneWest. A limited power of attorney executed by OneWest and evidencing Ocwen's

designation as loan servicer was admitted into evidence. Mr. Denson stated that

OneWest was the prior servicer of the Cummings' loan and that the servicing rights

were transferred to Ocwen through Ocwen's acquisition of OneWest. He explained in

detail Ocwen's regular business practice when it acquires the servicing rights of a loan

from a prior servicer and stated that the records received are reviewed for accuracy and

relied upon in servicing the loan. As to the location or transfer of the Cummings' original

loan documents, Mr. Denson testified that the records indicated the original documents

were received on May 15, 2010.

The Cummings challenged the admissibility of the records relating to loan

payment history and location of the original loan documents on hearsay grounds.

However, the trial court admitted the documents into evidence as OneWest's business

records. The Cummings also objected to admission of the note arguing the

endorsement on the note did not match the endorsements on the copy of the note

attached to the complaint. The court ruled the Cummings' argument went to the weight

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of the evidence, not the admissibility, and admitted the note and mortgage into

evidence.

At the conclusion of trial, the court ruled in favor of the Cummings, finding

OneWest failed to prove standing. The court cited discrepancies between the note

introduced into evidence and the copy of the note attached to the complaint, as well as

concern over the validity of an assignment of mortgage from Mortgage Electronic

Registration Systems, Inc. ("MERS") to IndyMac. On appeal OneWest argues the trial

court erred in finding the evidence insufficient to support its standing to foreclose. We

agree.

"A plaintiff who is not the original lender may establish standing to

foreclose a mortgage loan by submitting a note with a blank or special endorsement, an

assignment of the note, or an affidavit otherwise proving the plaintiff's status as the

holder of the note." Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA

2013) (footnote omitted). However, standing to foreclose must be established at the

time the complaint is filed. Id.; Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So.

3d 1222, 1223 (Fla. 2d DCA 2014) (citing McLean v. JP Morgan Chase Bank Nat'l

Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)). Here, the original mortgage and note

with a blank endorsement and OneWest's business records indicating the payment

history of the Cummings' loan were admitted into evidence. These documents, together

with Mr. Denson's testimony that OneWest was the holder of the note prior to filing the

complaint, were sufficient to establish OneWest's standing to foreclose. See Bednarek,

132 So. 3d at 1223; WAMCO XXVIII, Ltd. v. Integrated Elec. Env'ts., Inc., 903 So. 2d

230, 233 (Fla. 2d DCA 2005).

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 We reject the Cummings' argument that OneWest cannot prove it was in

possession of the original note because the endorsement on the note in evidence did

not match the endorsements on the copy of the note attached to the complaint. As

argued by OneWest, the Cummings presented no testimony or evidence to contradict

Mr. Denson's testimony that the note in evidence was the original note acquired by

OneWest in May 2010. Likewise, the Cummings' argument regarding the validity of the

assignment of mortgage from MERS to IndyMac is not relevant to OneWest's standing

to foreclose. Because the evidence showed that OneWest possessed the original note

endorsed in blank at the time it filed the complaint, its standing is established from its

status as the note holder regardless of any recorded assignments. See Stone v.

BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013) (holding that "because a

mortgage provides the security for the repayment of the note, the person having

standing to foreclose a note secured by a mortgage may be either the holder of the note

or a nonholder in possession of the note who has the rights of a holder") (quoting

Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011))). Accordingly, we

reverse the dismissal of OneWest's foreclosure action and remand for further

proceedings.

Reversed and remanded.

ALTENBERND and LUCAS, JJ., Concur.

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