NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
NANCY LEE BUCKINGHAM, )
)
Appellant, )
)
v. ) Case No. 2D15-5424
)
BANK OF AMERICA, N.A., )
)
Appellee. )
________________________________ )
Opinion filed October 25, 2017.
Appeal from the Circuit Court for Lee
County; James H. Seals, Senior Judge.
Mark P. Stopa of Stopa Law Firm,
Tampa, for Appellant.
W. Bard Brockman and Christian J.
Bromley of Bryan Cave LLP, Atlanta,
Georgia, for Appellee.
NORTHCUTT, Judge.
Following a bench trial, Bank of America, N.A., obtained a judgment
foreclosing a mortgage on Nancy Lee Buckingham's home. We reverse because the
bank failed to prove that it had standing to foreclose.
The bank filed a complaint alleging that it was the holder of the note and
mortgage in question and that Buckingham was in default because she had stopped
making payments. The complaint was verified by Ocwen Loan Servicing, as servicer for
the bank. In her answer, Buckingham raised the affirmative defense that the bank
lacked standing to sue on the note.
The only witness at trial was Shelia King, a senior loan analyst with
Ocwen. King testified that Ocwen was the subservicer for the loan, but Buckingham
objected that there were no documents in evidence to support the assertion that Ocwen
was the subservicer for this specific loan. King's testimony was premised on a limited
power of attorney that was admitted into evidence; it did not specifically reference the
Buckingham loan. The power of attorney authorized Ocwen to act for the bank in
regard to certain mortgage loans identified in a flow subservicing agreement. This
included the power to file suit on the bank's behalf. However, the bank did not introduce
the agreement into evidence, and as pointed out by Buckingham both below and on
appeal, there was no evidence that the Buckingham loan was included in the
agreement.
Beyond that, the evidence did not prove the bank's standing. A copy of
Buckingham's note, which was executed in favor of Mortgagease, Inc., was attached to
the complaint. There was an allonge to the note that transferred it from Mortgagease to
ABN AMRO Mortgage Group. In turn, the note contained a subsequent endorsement
from ABN in favor of LaSalle Bank, N.A. Finally, there was a blank endorsement
executed by Bank of America as "[s]uccessor by merger to LaSalle Bank, N.A."
"It is well settled that a plaintiff seeking to foreclose on a mortgage loan
must establish that it had standing to foreclose at the time it filed the complaint." Rosa
v. Deutsche Bank Nat'l Tr. Co., 191 So. 3d 987, 988 (Fla. 2d DCA 2016). "A plaintiff
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alleging standing as a holder 'must prove not only physical possession of the original
note but also, if the plaintiff is not the named payee, possession of the original note
endorsed in favor of the plaintiff or in blank (which makes it bearer paper).' " Id.
(quoting Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351, 353 (Fla. 1st DCA 2014)).
In the present case, the note did not contain an endorsement in favor of
the plaintiff bank. Although the note was ultimately endorsed in blank by the bank as a
successor by merger to LaSalle Bank, there was no evidence establishing the merger,
let alone that the bank acquired all of LaSalle Bank's assets. See Fiorito v. JP Morgan
Chase Bank, N.A., 174 So. 3d 519, 521 (Fla. 4th DCA 2015) ("While Chase also could
have established standing through its merger with WAMU, the [loan] officer's testimony
fell short of establishing that Chase acquired all of WAMU's assets, including
Appellant's note and mortgage, by virtue of the merger."); see also DiGiovanni v.
Deutsch Bank Nat'l Tr. Co., 42 Fla. L. Weekly D772, D774 (Fla. 2d DCA Apr. 5, 2017)
("Without any evidence to show that Bankers Trust had been renamed Deustche Bank,
Deustche Bank failed to show that it had standing to foreclose."). On the present
record, the endorsement in blank by the bank appears to be an anomalous
endorsement1 and a nonentity.
The bank did not present competent, substantial evidence that it was the
holder of the note at the time the complaint was filed. The bank also did not establish
that Ocwen was acting as its agent with the power to file suit on its behalf in regard to
1
"The term 'anomalous indorsement' means an indorsement made by a
person who is not the holder of the instrument. An anomalous indorsement does not
affect the manner in which the instrument may be negotiated." § 673.2051(4), Fla. Stat.
(2014).
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the Buckingham loan where the agreement was not entered into evidence and the last
valid endorsement to the note was in favor of LaSalle Bank. This is not a situation such
as in Phan v. Deutsche Bank National Trust Co., ex rel. First Franklin Mortgage Loan
Trust 2006-FF11, 198 So. 3d 744, 747-49 (Fla. 2d DCA 2016), which held that
Deustche Bank had constructive possession of the note because its agent was holding
the note endorsed in blank on its behalf.
We reverse the final judgment and remand for entry of a final order of
involuntary dismissal of the action. Elsman v. HSBC Bank USA, 182 So. 3d 770, 772
(Fla. 5th DCA 2015) (reversing the foreclosure judgment and remanding for an entry of
an order of involuntary dismissal where HSBC Bank failed to prove standing at trial).
Reversed and remanded with instructions.
LaROSE, CJ., and SILBERMAN, J., Concur.
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