Fielding v. PNC Bank

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

JOHN D. FIELDING,

Appellant,

v. Case No. 5D16-440

PNC BANK NATIONAL ASSOCIATION,
SUCCESSOR BY MERGER TO NATIONAL
CITY BANK SUCCESSOR BY MERGER TO
FIDELITY FEDERAL BANK AND TRUST,
HARBOUR LIGHTS HOMEOWNERS ASSOCIATION, ET AL.,

Appellees.

___________________________________________________/

Opinion filed February 2, 2018

Appeal from the Circuit Court
for Brevard County,
Charles G. Crawford, Judge.

Beau Bowin, of Bowin Law Group,
Indialantic, for Appellant.

Gabriel M. Hartsell and William L. Grimsley,
of McGlinchey Stafford, Jacksonville, for
Appellee, PNC Bank National Association.

No Appearance for other Appellees.

WALLIS, J.

John Fielding ("Borrower") appeals the entry of final judgment of foreclosure in

favor of PNC Bank, National Association, successor by merger to National City Bank,
successor by merger to Fidelity Federal Bank and Trust ("Appellee"). Because Appellee

did not establish standing at the inception of the case, we reverse and remand with

instructions for the trial court to enter an involuntary dismissal.1

In August 2003, Borrower executed a note and mortgage agreement with Fidelity

Federal Bank and Trust ("Original Lender"). In April 2007, Original Lender converted to a

national bank, assumed the name Fidelity Bank, National Association, and then merged

into National City Bank ("NCB"). In July 2008, National City Mortgage ("NCM") filed a

foreclosure complaint against Borrower. In November 2009, NCB merged with Appellee.

In June 2010, NCM moved to substitute Appellee as plaintiff as the successor by merger

to NCB, which was successor by merger with Original Lender.

At trial, Appellee called its records custodian, Omar Jerome, who testified that

Original Lender merged with NCB and then NCB merged with Appellee. Jerome identified

two documents relevant to the merger chain and central to this appeal: (1) a copy of the

certificate of merger for Original Lender, Fidelity Federal Bank and Trust, renamed Fidelity

Bank, to NCB; and (2) a copy of certificate of merger for NCB to Appellee from the

comptroller of currency. The trial court ultimately entered a final judgment of foreclosure

for Appellee.

"A trial court's decision as to whether a party has satisfied the standing requirement

is reviewed de novo." Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 46 (Fla. 5th DCA

2015) (quoting Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011)). "A

crucial element in any mortgage foreclosure proceeding is that the party seeking

1
Because we reverse and remand on the issue of standing, we decline to address
the remaining issues on appeal.

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action, "the surviving entity [must] prove that it 'acquired all of [the absorbed entity's]

assets, including [the] note and mortgage, by virtue of the merger.'" Segall, 192 So. 3d at

1245 (quoting Fiorito v. JP Morgan Chase Bank, Nat'l Ass'n, 174 So. 3d 519, 521 (Fla.

4th DCA 2015)).

Here, NCM filed its initial complaint of foreclosure with a lost note count and

attached a copy of the note payable to Original Lender. Borrower raised standing as an

affirmative defense. To establish standing at the inception of the case, Appellee must

show that NCM, its predecessor, was entitled to enforce the lost note at the time NCM

filed the complaint. See Bowmar, 188 So. 3d at 988. Appellee failed to provide evidence

of NCM's entitlement to enforce the note. Instead, Appellee established that Original

Lender merged with NCB, which then merged with Appellee, leaving NCM out of the

merger chain at trial. Based on the trial evidence, NCM has no connection to Original

Lender, NCB, or Appellee.2

Our court has recently held, on multiple occasions, that banks must establish and

explain the relationship between the entities in the entire chain of mergers in order to

establish standing. See, e.g., Green v. Green Tree Servicing, LLC, 230 So. 3d 989, 991

(Fla. 5th DCA 2017) ("The merger involved BAC and CHL Servicing, LP, while the original

2 Appellee asserts that Borrower did not properly preserve this precise issue for
review. However, we find the issue reviewable pursuant to Florida Rule of Civil Procedure
1.530(e). "Under the plain language of the rule, when there has been a nonjury trial and
the appellate issue is the sufficiency of the evidence to support the judgment, the failure
to object based on the insufficiency of the evidence will not bar raising that issue on
appeal." Winchel v. PennyMac Corp., 222 So. 3d 639, 644 (Fla. 2d DCA 2017). Here, the
issue goes to the sufficiency of the evidence because Appellee became obligated to prove
its standing in order to win when Borrower raised standing in his answer. See id.; see
also Delia v. GMAC Mortg. Corp., 161 So. 3d 554, 555 n.1 (Fla. 5th DCA 2014); Lacombe
v. Deutsche Bank Nat'l Tr. Co., 149 So. 3d 152, 153 (Fla. 1st DCA 2014).

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action, "the surviving entity [must] prove that it 'acquired all of [the absorbed entity's]

assets, including [the] note and mortgage, by virtue of the merger.'" Segall, 192 So. 3d at

1245 (quoting Fiorito v. JP Morgan Chase Bank, Nat'l Ass'n, 174 So. 3d 519, 521 (Fla.

4th DCA 2015)).

Here, NCM filed its initial complaint of foreclosure with a lost note count and

attached a copy of the note payable to Original Lender. Borrower raised standing as an

affirmative defense. To establish standing at the inception of the case, Appellee must

show that NCM, its predecessor, was entitled to enforce the lost note at the time NCM

filed the complaint. See Bowmar, 188 So. 3d at 988. Appellee failed to provide evidence

of NCM's entitlement to enforce the note. Instead, Appellee established that Original

Lender merged with NCB, which then merged with Appellee, leaving NCM out of the

merger chain at trial. Based on the trial evidence, NCM has no connection to Original

Lender, NCB, or Appellee.2

Our court has recently held, on multiple occasions, that banks must establish and

explain the relationship between the entities in the entire chain of mergers in order to

establish standing. See, e.g., Green v. Green Tree Servicing, LLC, 230 So. 3d 989, 991

(Fla. 5th DCA 2017) ("The merger involved BAC and CHL Servicing, LP, while the original

2 Appellee asserts that Borrower did not properly preserve this precise issue for
review. However, we find the issue reviewable pursuant to Florida Rule of Civil Procedure
1.530(e). "Under the plain language of the rule, when there has been a nonjury trial and
the appellate issue is the sufficiency of the evidence to support the judgment, the failure
to object based on the insufficiency of the evidence will not bar raising that issue on
appeal." Winchel v. PennyMac Corp., 222 So. 3d 639, 644 (Fla. 2d DCA 2017). Here, the
issue goes to the sufficiency of the evidence because Appellee became obligated to prove
its standing in order to win when Borrower raised standing in his answer. See id.; see
also Delia v. GMAC Mortg. Corp., 161 So. 3d 554, 555 n.1 (Fla. 5th DCA 2014); Lacombe
v. Deutsche Bank Nat'l Tr. Co., 149 So. 3d 152, 153 (Fla. 1st DCA 2014).

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note listed CHL, Inc., as the original lender. Neither Green Tree nor its witness explained

the relationship between these two distinct entities."); Wisman v. Nationstar Mortg., LLC,

42 Fla. L. Weekly D2251, D2252 (Fla. 5th DCA Oct. 20, 2017) ("While Nationstar claims

that CHL Inc., CHL Servicing, LP and BAC are the same entity, its own evidence

demonstrates otherwise. . . . [T]he evidence fails to show that CHL Inc. was affiliated with

either CHL Servicing, LP or BAC."). Therefore, this absence of proof is fatal to

establishing standing. See Green, 230 So. 3d at 991; Wisman, 42 Fla. L. Weekly at

D2252; Bowmar, 188 So. 3d at 988. Accordingly, we reverse and remand with instructions

for the trial court to enter an involuntary dismissal.

REVERSED and REMANDED with Instructions.

COHEN, C.J. and ORFINGER, J., concur.

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