Peters v. The Bank of New York Mellon

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

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

HAZEL N. PETERS a/k/a HAZEL N. )
JOHNSON; and UNKNOWN TENANT )
1 n/k/a DAVE PETERS, )
)
Appellants, )
)
v. ) Case No. 2D15-2222
)
THE BANK OF NEW YORK MELLON, )
f/k/a THE BANK OF NEW YORK, AS )
TRUSTEE FOR BEAR STEARNS )
ASSET BACKED SECURITIES TRUST )
2006-4, ASSET BACKED )
CERTIFICATES, SERIES 2006-4, and )
LEO JOHNSON, )
)
Appellees. )
)

Opinion filed May 26, 2017.

Appeal from the Circuit Court for Lee
County; James H. Seals, Senior Judge.

Mark P. Stopa of Stopa Law Firm, Tampa,
for Appellant Hazel N. Peters a/k/a Hazel
N. Johnson.

Kristen M. Crescenti, Christopher C. O'Brien
and Ronnie J. Bitman of Pearson Bitman
LLP, Maitland, for Appellee The Bank of
New York Mellon.

No appearance for Appellee Leo Johnson.
WALLACE, Judge.

Hazel N. Peters, a/k/a Hazel N. Johnson (Ms. Peters), challenges a final

judgment of foreclosure in favor of The Bank of New York Mellon (the Bank) entered

after a bench trial. Because the Bank failed to prove its ownership of the lost note that it

attempted to reestablish and enforce, we reverse.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

On March 13, 1998, Ms. Peters and Leo Johnson executed a note in favor

of ContiMortgage Corporation as the Lender. The note was secured by a standard

residential mortgage on real property in Lee County, Florida. The mortgage also named

ContiMortgage Corporation as the Lender.

On January 28, 2013, the Bank filed the underlying action to foreclose the

mortgage and for the reestablishment of the note, which the Bank alleged had been

lost. The Bank's complaint alleged September 18, 2008, as the date that the note went

into default. The Bank filed a lost note affidavit dated on October 31, 2006, and

executed on behalf of EMC Mortgage Corporation (EMC), a prior holder of the

mortgage. In the affidavit, the affiant merely asserted that the note "was lost and has

not been paid, satisfied, assigned, pledged, transferred or hypothecated in any way."

The affidavit did not provide any details regarding the date or circumstances of the

asserted loss of the note. A copy of the note was attached to the affidavit. The copy of

the note did not reflect any indorsements or allonges. The Bank subsequently filed

another lost note affidavit executed on behalf of Select Portfolio Servicing, Inc. (SPS),

the current servicer for the loan. The copy of the note attached to the SPS affidavit was

identical to the copy attached to the EMC affidavit.

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 Ms. Peters filed an answer and affirmative defenses to the complaint. In

her answer, Ms. Peters denied the material allegations of the complaint and asserted

numerous affirmative defenses. In pertinent part, Ms. Peters denied that the Bank had

standing to enforce the note and mortgage, asserted that the Bank's action to

reestablish the lost note was barred by the applicable statute of limitations, and claimed

that the Bank had failed to comply with a condition precedent to foreclosure because it

had not notified the borrower of the claimed assignment of the loan within thirty days of

the assignment in accordance with section 559.715, Florida Statutes (2012).

The lost note was payable to ContiMortgage Corporation; it had not been

indorsed in blank or payable to the order of the Bank. At trial, the Bank sought to

establish its ownership of the lost note with a series of four assignments of mortgage.

The first assignment, dated April 8, 1998, was from ContiMortgage Corporation to

ContiWest Corporation. The second assignment, dated April 7, 1998, was from

ContiWest Corporation to Manufacturers and Traders Trust Company. Although the

second assignment was dated one day before the first one, it was recorded after the

recording of the first one. The third assignment, dated June 28, 2010, was from

Manufacturers and Traders Trust Company to EMC. Each of the first three

assignments expressly assigned both the mortgage and the note that was secured by it.

The fourth assignment, dated December 7, 2012, was from EMC to the

Bank. In pertinent part, the fourth assignment assigned "all of Assignor's right, title and

interest all beneficial interest under a certain Mortgage, dated March 13, 1998, made

and executed by Leo Johnson and Hazel N. Johnson fka Hazel N. Peters to

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ContiMortgage Corporation . . . ."1 At trial, Ms. Peters argued that the fourth assignment

was insufficient to establish the Bank's ownership of the lost note because it assigned

only the mortgage, not the note. The trial court ruled that the fourth assignment was

sufficient to assign the note as well as the mortgage and rejected Ms. Peters' argument.

The trial court admitted the certified copies of the four assignments into evidence over

Ms. Peters' objection.

Counsel for the Bank conceded that the note and mortgage at issue had

been the subject of two prior foreclosure actions filed in the Lee County Circuit Court.

The first action was filed in 2001; the second was filed in 2004. Notably, both actions,

which were subsequently dismissed, included a count for the reestablishment of a lost

note. Based on the filing of the prior actions and the first lost note affidavit executed in

2006, Ms. Peters argued that the Bank's action to reestablish the lost note was barred

because it had not been brought within the bar of the five-year statute of limitations set

forth in section 95.11(2)(b), Florida Statutes (1997). The trial court rejected this

argument, reasoning as follows:

The purpose of the statute of limitations is to try to
prevent stale claims, okay, but my belief—and this is going
to be the ruling of the Court—that the loss or discovery of the
lost instrument is not a claim. It's an event. It's nothing that
gives rise to a claim that would give rise to [a] cause of
action. The only time that there's going to be a claim
resulting from a lost instrument is when it needs to be
enforced and that is when it goes into default. So the ruling
of the Court . . . is going to be that there is no need once a
lost negotiable instrument is discovered as being lost, that
they have to file a cause of action to reestablish that note
when that note is not being sought to be enforced.

1
We understand that there appears to be one or more words missing from
this operative language. But the quote is accurate; we have not inadvertently dropped
any words from the quoted language.

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Upon inquiry by counsel as to the effect of the filing of the two prior actions to enforce

the lost note on the accrual of the cause of action, the trial court reiterated its ruling that

the statute of limitations had not run so as to bar the current action to reestablish the

lost note.

The Bank called a single witness at trial, Cynthia Stevens. At the

conclusion of the presentation of Ms. Stevens's testimony, the trial court rejected all of

Ms. Peters' other arguments, including those based on the Bank's asserted lack of

standing and noncompliance with the requirements of section 559.715. The trial court

entered the final judgment of foreclosure on April 17, 2015. This appeal followed.

II. MS. PETERS' APPELLATE ARGUMENTS

On appeal, Ms. Peters raises three points. First, she argues that the Bank

failed to prove its standing to enforce the lost note. Second, Ms. Peters contends that

the Bank's claim to reestablish the lost note is barred by the applicable statute of

limitations. Third, she asserts that the Bank failed to prove that it gave Ms. Peters

written notice of the assignment of the loan at least thirty days before the filing of the

underlying action as required by section 559.715.

Ms. Peters' third point is without merit. See Brindise v. U.S. Bank Nat'l

Ass'n, 183 So. 3d 1215, 1219-20 (Fla. 2d DCA), review denied, No. SC16-300, (Fla.

Mar. 22, 2016); Nationstar Mortg., LLC v. Summers, 198 So. 3d 1162, 1162 (Fla. 1st

DCA 2016) (per curiam affirmance citing Brindise with approval); cf. Bank of Am., N.A.

v. Siefker, 201 So. 3d 811, 817-18 (Fla. 4th DCA 2016) (holding that section 559.715

was applicable to the mortgage foreclosure action brought by Bank of America, but that

the statute did not operate as a condition precedent to bringing a mortgage foreclosure

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action). Ms. Peters' second point regarding the application of the statute of limitations to

an action for the reestablishment of a lost promissory note raises an issue that is

apparently one of first impression in Florida. Although the statute of limitations issue

raises interesting questions, our resolution of Ms. Peters' first issue makes it

unnecessary to address her arguments regarding the statute of limitations. Accordingly,

we turn now to the issue of the Bank's standing to enforce the lost note.

III. DISCUSSION

Our review of a trial court's ruling regarding whether a foreclosure plaintiff

has standing is de novo. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So.

3d 1106, 1108 (Fla. 5th DCA 2015) (citing Schmidt v. Deutsche Bank, 170 So. 3d 938,

941 (Fla. 5th DCA 2015)). "A trial court's determination of whether a party has

reestablished a lost note is reviewed for sufficiency of the evidence." Home Outlet, LLC

v. U.S. Bank Nat'l Ass'n, 194 So. 3d 1075, 1077 (Fla. 5th DCA 2016) (citing Correa v.

U.S. Bank Nat'l Ass'n, 118 So. 3d 952, 956 (Fla. 2d DCA 2013)).

In order to establish its standing, the Bank had to prove either that it was

the holder or the owner of the note. See Sorrell v. U.S. Bank Nat'l Ass'n, 198 So. 3d

845, 847 (Fla. 2d DCA 2016). Here, the Bank was not in possession of the note. The

note was lost at least as early as October 31, 2006. When the note was lost, it had not

been indorsed by the original lender either in blank or to another party.

Section 673.3091, Florida Statutes (2012), sets forth the requirements for

a person not in possession of an instrument to enforce it:

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

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 (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.

(2) A person seeking enforcement of an instrument
under subsection (1) must prove the terms of the instrument
and the person's right to enforce the instrument. If that proof
is made, s. 673.3081 applies to the case as if the person
seeking enforcement had produced the instrument. The
court may not enter judgment in favor of the person seeking
enforcement unless it finds that the person required to pay
the instrument is adequately protected against loss that
might occur by reason of a claim by another person to
enforce the instrument. Adequate protection may be
provided by any reasonable means.

The Bank could not prove that it was entitled to enforce the note when the loss of

possession occurred. Thus, it had to prove that it "ha[d] 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). Where, as in this case, the

plaintiff cannot prove that it was entitled to enforce a note when it was lost, "the plaintiff

may submit evidence of an assignment from the payee to the plaintiff or an affidavit of

ownership." Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535, 538 (Fla. 5th DCA

2015); see also Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA

2013) ("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 [i]ndorsement, an

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

holder of the note.").

The Bank's proof in this regard depended on the chain of four

assignments of mortgage that began with the original lender. Each of the first three

assignments expressly included an assignment of the note with the mortgage.

However, the fourth assignment from EMC to the Bank omitted the critical language

assigning the note along with the mortgage. Because the fourth assignment assigned

only the mortgage and not the note, it was insufficient to transfer any interest in the note

to the Bank. See Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 641-42 (Fla. 2d

DCA 2015); Kyser v. Bank of Am., N.A., 186 So. 3d 58, 60 (Fla. 1st DCA 2016); Jelic v.

BAC Home Loans Servicing, LP, 178 So. 3d 523, 525 (Fla. 4th DCA 2015); see also

Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) ("[A]n assignment

of mortgage, even if executed before the foreclosure action commenced, is insufficient

to prove standing where the assignment reflects transfer of only the mortgage, not the

note.").

In support of its standing to enforce the lost note, the Bank asserts that the

reference in the operative language of the fourth assignment to "beneficial interest" in

the mortgage denotes an inclusion of the note in the assignment as well as the

mortgage. The Bank relies on Johns v. Gillian, 184 So. 140 (Fla. 1938), as authority for

this proposition. In Johns, the Florida Supreme Court said: "Any form of assignment of

a mortgage, which transfers the real and beneficial interest in the securities

unconditionally to the assignee, will entitle him to maintain an action for foreclosure." Id.

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at 143 (emphasis added). According to the Bank's reading of Johns, a reference in an

assignment to the beneficial interest in a mortgage "actually assigns the Note as well."

We conclude that the decision in Johns does not support the Bank's

argument regarding standing for two reasons. First, the Court's recitation of the facts in

Johns reflects that the note and other securities at issue had been assigned to the

plaintiff in that case by means other than the assignment of mortgage under review. Id.

at 141, 144. Thus, the facts in Johns are easily distinguishable from the facts of the

case before us. Second, the isolated snippet from the Johns opinion upon which the

Bank places its focus—read in the context of the opinion as a whole—does not support

the Bank's position. The Court's opinion in Johns is consistent with well-established

Florida law "that a mortgage is but an incident to the debt, the payment of which it

secures, and its ownership follows the assignment of the debt"—not the other way

around. Id. at 143.

The Bank also points to the testimony of its trial witness, Ms. Stevens, as

being sufficient to establish its ownership of the lost note. Ms. Stevens was a "case

manager" employed by SPS. It appeared that SPS took over the servicing of the loan in

August 2013. Thus, SPS's involvement with the loan began approximately six months

after the filing of the underlying action in the trial court and almost five years after the

loan went into default. After the four assignments of mortgage were admitted into

evidence, Ms. Stevens testified that the Bank had acquired an ownership interest in the

note "from a person [sic] who [was] entitled to enforce the note." The Bank did not

present any documentary evidence regarding how and when it acquired its claimed

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ownership interest in the note other than the fourth assignment.2 Ms. Stevens

conceded that when the loan was boarded into SPS's records, the note had already

been lost. Indeed, the first lost note affidavit indicated that the note was lost at least as

early as 2006.

Here, Ms. Stevens's testimony was insufficient to establish the ownership

of the note. SPS did not begin servicing the note until August 2013. Obviously, Ms.

Stevens had no personal knowledge about the Bank's claim to have acquired ownership

of the note in 2006. Moreover, Ms. Stevens's testimony in this regard was not

supported by the limited documentary evidence about the loan that was available.

Because Ms. Stevens's testimony was not based on personal knowledge and was not

supported by any documentation, we conclude that the testimony was insufficient to

establish the Bank's ownership of the lost note. See Tomlinson v. GMAC Mortg., LLC,

173 So. 3d 1121, 1122-23 (Fla. 2d DCA 2015); Home Outlet, 194 So. 3d at 1078;

Gonzalez 180 So. 3d at 1108-09; Dixon v. Express Equity Lending Grp., LLLP, 125 So.

3d 965, 967-68 (Fla. 4th DCA 2013).

IV. CONCLUSION

We have considered the Bank's other arguments about standing, and we

find them to be without merit. Because the Bank failed to establish its ownership of the

2
The lost note affidavit prepared on behalf of SPS and filed in the
underlying action recited, in pertinent part, as follows: "The business records of [SPS]
reflect that The Bank of New York, in trust for registered holders of Bear Stearns Asset
Backed Securities 2006-4, Asset-Backed Certificates, Series 2006-4 (the "Noteholder")
acquired the Note on or about October 1, 2006. [SPS] services the Note and Mortgage
on behalf of and as attorney in fact for the Noteholder." The business records
referenced here were not otherwise identified or described; nor were any copies of the
business records attached as exhibits to the affidavit.

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lost note, the trial court erred in entering the final judgment of foreclosure. Under these

circumstances, we must reverse the final judgment and remand this case to the trial

court with directions to enter an involuntary dismissal of the Bank's complaint. See

Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280, 283 (Fla. 2d DCA 2014);

Correa, 118 So. 3d at 956-57.

Reversed and remanded with directions.

SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.

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