Third District Court of Appeal
State of Florida
Opinion filed March 8, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1934
Lower Tribunal No. 12-30553
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Deutsche Bank National Trust Company, etc.,
Appellant,
vs.
Melody Gaskin Mobley,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.
Bryan Cave and W. Bard Brockman (Atlanta, Ga.) and Zina Gabsi, for
appellant.
Catherine A. Riggins, for appellee.
Before WELLS, SALTER and EMAS, JJ.
SALTER, J.
Deutsche Bank National Trust Company (“Deutsche Bank”) appeals an
order involuntarily dismissing Deutsche Bank’s residential mortgage foreclosure
action against the appellee, Melody Gaskin Mobley. Ms. Mobley defended the
foreclosure action as the personal representative of the estate of her late mother,
Virginia Gaskin, who passed away in 2011.1 Following the close of Deutsche
Bank’s case in the non-jury trial, the trial court granted Ms. Mobley’s motion for
involuntary dismissal based on a purported lack of standing at the inception of the
case. For the reasons which follow, we reverse and remand the case for further
proceedings.
When the foreclosure complaint was filed in August 2012, a copy of the
original note, endorsed in blank, was attached to the complaint. In September of
2013, Deutsche Bank filed the original promissory note and mortgage; a special
endorsement to Deutsche Bank was included.
At trial, Deutsche Bank’s witness was an officer from the servicing
company for Deutsche Bank, Ocwen Financial Corporation. The witness testified
to the delivery of the original note and mortgage to Ocwen in preparation for
litigation, the defaults and default letters, the payment history,2 and Ocwen’s
1 Ms. Mobley’s father, Clarence Gaskin, signed the note and mortgage with
Virginia Gaskin in 2006. Mr. Gaskin passed away in 2010, and title to the
encumbered property became vested in his wife, Virginia Gaskin. Title passed to
Ms. Mobley when Virginia Gaskin’s estate was probated.
2 Default occurred in September 2009, and no payments were made from that date
2
recordkeeping. She explained that the note had been returned to Deutsche Bank
for an additional and specific endorsement before the complaint was filed, and that
Deutsche Bank had possession of the original note and mortgage when the
complaint was filed.
The Bank’s clarification of a blank endorsement did not vitiate its standing
to initiate the foreclosure case on either endorsement, given its possession of the
original note and mortgage when the complaint was filed. Morgan v. Bank of New
York Mellon, 200 So. 3d 792, 796 (Fla. 1st DCA 2016). Deutsche Bank’s
clarification of the endorsement only supports Deutsche Bank’s standing. Section
673.2051(3), Florida Statutes (2016), specifies that a “holder may convert a blank
indorsement that consists only of a signature into a special indorsement by writing,
above the signature of the indorser, words identifying the person to whom the
instrument is made payable.”3
Ms. Mobley made the argument below and here that the lender and its
servicer are different entities and that physical possession of the note by one of
them must exclude possession by the other. In reality, however, “[p]ossession of a
note by a third party agent such as a servicer or law firm, gives the ‘owner’ of the
note constructive possession sufficient to establish standing as the note's holder.”
through the 2016 bench trial.
3 Why the Uniform Commercial Code prefers “indorsement” to the more common
American usage, “endorsement,” can remain a mystery for purposes of this
opinion.
3
U.S. Bank, Nat’l Ass'n v. Angeloni, 199 So. 3d 492, 493 (Fla. 4th DCA 2016);
Phan v. Deutsche Bank Nat’l Trust Co., ex rel. First Franklin Mortg. Loan Trust
2006-FF11, 198 So. 3d 744, 748 (Fla. 2d DCA 2016) (citing Third District cases,
among others, for the proposition that physical possession by an agent is
constructive possession by the principal, conferring standing for the principal’s
complaint for breach).4
Ms. Mobley’s additional arguments do not merit further elaboration. As a
matter of law, Ms. Mobley’s motion for involuntary dismissal should have been
denied. We reverse the final order of dismissal and remand the case for further
proceedings.
4 Although promulgated after the complaint was filed in the present case, section
702.015, Florida Statutes (2016), Florida Rule of Civil Procedure 1.115 and Forms
1.944(a) and (b) have since clarified the manner in which a lender or its agent must
certify, at inception of the foreclosure case, that it is the owner and holder of a note
and mortgage, or is otherwise entitled to commence the action on the note and
mortgage.
4