Nationstar Mortgage, LLC v. U.N. Kee Wing

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

NATIONSTAR MORTGAGE, LLC,

Appellant,

v. Case No. 5D15-3945

U.N. KEE WING, BANK OF AMERICA,
N.A., SUCCESSOR BY MERGER TO
BAC HOME LOANS SERVICING, LP
OAKS MASTER PROPERTY OWNERS,
ET AL.,

Appellees.

________________________________/

Opinion filed January 27, 2017

Appeal from the Circuit Court
for Osceola County,
Scott Polodna, Judge.

David W. Rodstein, of Rodstein Law, P.A.,
Tamarac, for Appellant.

Isaac Manzo, Manzo & Associates, P.A.,
Orlando, for Appellees.

LAMBERT, J.

Nationstar Mortgage, LLC, (“Appellant”) appeals the trial court’s involuntary

dismissal of its action for foreclosure and reestablishment of a lost promissory note at the

close of its case-in-chief at trial. Based on the principles that we must apply when

reviewing a trial court’s consideration of a motion for involuntary dismissal, we are

constrained to reverse the final order.
This case began when the original lender filed a one-count complaint against the

borrower to foreclose upon the mortgage that it held on the borrower’s real property. The

lender attached to its complaint a copy of the note and mortgage. Appellant later moved

to substitute as a party-plaintiff and to amend the complaint, alleging that the note and

mortgage had been transferred and assigned to it by the original lender and that it was

now entitled to enforce the note and mortgage. Appellant also sought to reestablish the

promissory note, alleging that it was now the holder of the note but that the note had been

lost or destroyed and its whereabouts could not be determined. Appellant further alleged

that the loss of possession of the note was not the result of a transfer or lawful seizure

and that it was in possession of the note and was entitled to enforce it when the loss of

possession occurred.

At trial, Appellant presented an affidavit of lost note, to which a copy of the

previously described promissory note, now with a blank indorsement from the original

lender to Appellant, was attached. The trial court, over objection, admitted this affidavit

of lost note and the copy of the promissory note into evidence. The affidavit explained

that the Appellant first acquired possession of the note on or before February 22, 2013,

and as the noteholder, it was entitled to enforce the note when the loss of possession

occurred. The affiant also attested that, after diligent search, the note could not

reasonably be obtained because its whereabouts could not be determined and that

Appellant agreed to indemnify and hold harmless the borrowers if some unknown party

thereafter sought to enforce the note against them. Finally, Appellant presented a witness

who testified, without objection, that Appellant’s loss of possession of the note was not

the result of a transfer or a lawful seizure.

2
After Appellant concluded with the presentation of its evidence, Appellee moved

for an involuntary dismissal. Although its explanation was not entirely clear, the trial court

orally granted the motion, apparently based on Appellant’s failure to establish standing

and the insufficiency of the evidence to reestablish the lost note. The court then entered

the unelaborated order now on appeal.

“The standard of review for a trial court’s ruling on a motion for involuntary

dismissal is de novo.” Deutsche Bank Nat’l Tr. Co. v. Baker, 199 So. 3d 967, 968 (Fla.

4th DCA 2016) (citing Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So. 3d 562, 563 (Fla.

4th DCA 2014)).

“In making a motion for involuntary dismissal pursuant to Florida Rule of Civil

Procedure 1.420(b), ‘the movant admits the truth of all facts in evidence and every

reasonable conclusion or inference’ that can be drawn from the evidence favorable to the

non-moving party.” Luciani v. Nealon, 181 So. 3d 1200, 1202 (Fla. 5th DCA 2015)

(quoting Day v. Amini, 550 So. 2d 169, 171 (Fla. 2d DCA 1989)). Essentially, the trial

court must view the evidence in the light most favorable to the plaintiff, Wright v. Emory,

41 So. 3d 290, 292 (Fla. 4th DCA 2010), and it may not consider the credibility of the

witnesses or the weight of the evidence in ruling on the motion for involuntary dismissal.

Ruck Bros. Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So. 2d 205, 207 (Fla. 2d DCA 1995).

“An involuntary dismissal . . . is properly entered only when the evidence considered in

the light most favorable to the non-moving party fails to establish a prima facie1 case on

the non-moving party’s claim.” Hack v. Estate of Helling, 811 So. 2d 822, 825 (Fla. 5th

1 A prima facie case is defined as “the establishment of a legally required rebuttable
presumption” or “[a] party’s production of enough evidence to allow the fact-trier to infer
the fact at issue and rule in the party’s favor.” Prima Facie Case, Black’s Law Dictionary
(10th ed. 2014).

3
DCA 2002) (citing Wimbledon Townhouse Condo. I Ass’n v. Wolfson, 510 So. 2d 1106,

1109 (Fla. 4th DCA 1987)).

In its action to reestablish the lost note, Appellant was required to satisfy the

requirements detailed in section 673.3091, Florida Statutes (2015), to prevail. See Fed.

Nat’l Mortg. Ass’n v. McFadyen, 194 So. 3d 418, 420 (Fla. 3d DCA 2016). That statute

provides:

(1) A person not in possession of an instrument is
entitled to enforce the instrument if:

(a) the person seeking to enforce the instrument 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;

(b) The loss of possession was not the result of a
transfer by the person or a lawful seizure; and

(c) The person cannot reasonably obtain possession
of the instrument because the instrument was destroyed, its
whereabouts cannot be determined, or it is in the wrongful
possession of an unknown person or a person that cannot be
found or is not amenable to service of process.

§ 673.3091(1), Fla. Stat. (2015). “A party seeking to reestablish a lost note may meet

these requirements either through a lost note affidavit or by testimony from a person with

knowledge.” Home Outlet, LLC v. U.S. Bank Nat’l Ass’n, 194 So. 3d 1075, 1077–78 (Fla.

5th DCA 2016) (citing Figueroa v. Fed. Nat’l Mortg. Ass’n, 180 So. 3d 1110, 1114 (Fla.

5th DCA 2015)).

Viewing the evidence admitted at trial in the light most favorable to Appellant, the

lost note affidavit and the testimony of Appellant’s witness established the

4
aforementioned elements for reestablishment of a lost note.2 Furthermore, Appellant

presented prima facie evidence of its standing to foreclose the mortgage, as a copy of the

original note was attached to the initial complaint filed by the original lender, an

assignment of the mortgage from the original lender to Appellant predating the filing of

the amended complaint was admitted into evidence without objection, and the lost note

affidavit admitted into evidence demonstrated that Appellant acquired possession of the

note on or before February 22, 2013, which is also prior to the filing of its amended

complaint. See Figueroa, 180 So. 3d at 1115. While the trial court, after the presentation

of all the evidence and the closing arguments, sitting as the trier-of-fact in this case, could,

at that time, “appropriately consider any uncertainty, contradiction, or persuasiveness in

the evidence when rendering its judgment, that kind of comparative analysis had no place

in the context of a motion for involuntary dismissal.” Deutsche Bank Nat’l Tr. Co. v.

Kummer, 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016).

Accordingly, because Appellant’s evidence before the court at the time Appellee

moved for involuntary dismissal established a prima facie case, we reverse the order of

dismissal on appeal and remand this case for further proceedings.

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ., concur.

2 We take no position as to whether the lost note affidavit and the previously
described testimony of the witness should have been admitted into evidence as that is
not integral to our analysis whether the involuntary dismissal entered was proper. See
Baker, 199 So. 3d at 968 (“Where a foreclosure plaintiff presents evidence of the amount
of damages under the loan, there is sufficient prima facie evidence of damages to
preclude an involuntary dismissal, even if the evidence of damages was based on
inadmissible hearsay that was erroneously admitted at trial.” (citing Beauchamp v. Bank
of N.Y., 150 So. 3d 827, 829 n.2 (Fla. 4th DCA 2014); Peuguero v. Bank of Am., N.A.,
169 So. 3d 1198, 1203–04 (Fla. 4th DCA 2015)).