NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
U.S. BANK NATIONAL ASSOCIATION, )
as trustee for the holders of the Terwin )
asset-backed securities series 2007-QHL1, )
)
Appellant, )
)
v. ) Case No. 2D16-5243
)
TAMMY L. COOK and CHRISTOPHER )
COOK, )
)
Appellees. )
)
Opinion filed July 17, 2019.
Appeal from the Circuit Court for Pinellas
County; Cynthia Newton, Judge.
Shawn Taylor of DeLuca Law Group, PLLC,
Fort Lauderdale, for Appellant.
Mark P. Stopa of Stopa Law Firm, Tampa
(withdrew after briefing), for Appellees.
Tammy L. Cook and Christopher Cook,
pro se.
SLEET, Judge.
U.S. Bank appeals the circuit court's involuntary dismissal of its
foreclosure complaint against Tammy and Christopher Cook. Because the bank
provided sufficient evidence to support a prima facie case for foreclosure, we reverse.
The bank initiated this foreclosure action on December 13, 2013. The
bank alleged that Specialized Loan Servicing LLC (SLS) serviced the loan as the bank's
"duly appointed Attorney in Fact as set out in the Power of Attorney," which the bank
attached as an exhibit to the amended complaint. At trial, the bank called an SLS
representative to testify and admitted into evidence two limited powers of attorney
between the bank and SLS; the original note and mortgage; the 2008 assignment of the
note and mortgage to the bank; an October 31, 2013, bailee letter authorizing the bank's
attorney to hold the Cooks' original note and mortgage; copies of a 2013 loan
modification; loan payment records; and the amount of debt owed. All of these
documents were admitted over the Cooks' objections.
After the bank rested, the Cooks moved for involuntary dismissal. The
Cooks argued that the bank failed to prove an agency relationship between itself and
SLS and therefore failed to show that it had constructive possession of the note at the
time it filed the amended complaint. The trial court granted the motion for involuntary
dismissal, finding that "[t]he evidence presented is insufficient to establish an agency
relationship exists between the [bank] and SLS." This was error. Because we conclude
that the bank admitted sufficient evidence that it constructively possessed the note
through its agent, SLS, when it filed its initial complaint on December 13, 2013, we
reverse.
"We review an order granting a motion for involuntary dismissal at the
close of a case under a de novo standard of review." Deutsche Bank Nat'l Tr. Co. v.
Kummer, 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016). "An involuntary dismissal or
directed verdict is properly entered only when the evidence considered in the light most
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favorable to the [nonmoving] party fails to establish a prima facie case on the
[nonmoving] party's claim." Wells Fargo Bank, N.A. v. Eisenberg, 220 So. 3d 517, 522
(Fla. 4th DCA 2017) (emphasis omitted) (quoting McCabe v. Hanley, 886 So. 2d 1053,
1055 (Fla. 4th DCA 2004)). The trial court "can neither weigh the evidence nor consider
the credibility of witnesses" in ruling on a motion for involuntary dismissal. Capital
Media, Inc. v. Haase, 639 So. 2d 632, 633 (Fla. 2d DCA 1994); see also Tillman v.
Baskin, 260 So. 2d 509, 511 (Fla. 1972). And the appellate court will affirm an
involuntary dismissal "only where no proper view of the evidence could sustain a verdict
in favor of the nonmoving party." Deutsche Bank Nat'l Tr. Co. v. Huber, 137 So. 3d 562,
563–64 (Fla. 4th DCA 2014).
"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
assignment of the note, or an affidavit otherwise proving the plaintiff's status . . . ."
Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). It is
undisputed that the bank did not have direct possession of the note. However, at trial it
proceeded on a theory that SLS possessed the note on its behalf at the time the bank
filed its foreclosure complaint. See Phan v. Deutsche Bank Nat'l Tr. Co. ex rel. First
Franklin Mortg. Loan Tr. 2006-FF11, 198 So. 3d 744, 749 (Fla. 2d DCA 2016) ("[W]here
an agent holds a mortgage note on behalf of its principal, the principal has constructive
possession of the note and standing to file a complaint for foreclosure.").
"The existence of an agency [relationship] may be shown by any
substantial evidence, either direct or circumstantial." Id. (alteration in original) (quoting
McCabe v Howard, 281 So. 2d 362, 363 (Fla. 2d DCA 1973)). "A power of attorney
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creates the relationship of principal and agent between the one who gives the power
and the one who holds it." Kotsch v. Kotsch, 608 So. 2d 879, 880 (Fla. 2d DCA 1992).
The limited powers of attorney admitted by the bank at trial appointed SLS as attorney-
in-fact for the bank and granted it the authority to "demand, sue for, recover, collect[,]
and receive each and every sum of money, debt, account[,] and interest (which now is,
or hereafter shall become due and payable) belonging to or claimed" by the bank. Each
included a schedule of accounts to be serviced by SLS, specifically listing the 181
Terwin Micro 2007-QHL trust. The SLS representative testified that the Cooks' note and
mortgage were contained within this trust, and her testimony was supported by the
payment history records and managed service agreement admitted into evidence. She
also testified that SLS had been servicing the Cooks' loan since 2007 and had
negotiated a loan modification agreement on behalf of the bank in 2013. This was
prima facie evidence of an agency relationship between SLS and the bank.
Moreover the bailee letters admitted at trial reflect that the original note
and mortgage were transferred from SLS to the bank's attorney of record in October
2013, two months before the attorney filed the initial foreclosure complaint. Thus, there
was sufficient evidence to show that the bank had constructive possession of the note
at the time it filed its complaint. See U.S. Bank, Nat'l Ass'n v. Angeloni, 199 So. 3d 492,
493 (Fla. 4th DCA 2016) ("Possession 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 . . . ."); see also Fed. Nat'l Mortg. Ass'n v. McFadyen, 194 So. 3d
418, 422–23 (Fla. 3d DCA 2016) ("While there is no evidence that Fannie Mae had
direct or actual possession of the note either after it was received by Aurora, its
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servicing agent; when the original was sent to attorney David Stern to file suit to enforce
it; when the servicing agreement was assumed by Seterus; or later when this suit was
filed, the uncontradicted evidence was that at all times material herein, Fannie Mae was
in constructive possession of the note and thus had standing to file suit to enforce it.").
"Where the plaintiff has presented a prima facie case and different
conclusions or inferences can be drawn from the evidence, the trial judge should not
grant a motion for involuntary dismissal." Kummer, 195 So. 3d at 1175 (quoting Day v.
Amini, 550 So. 2d 169, 171 (Fla. 2d DCA 1989)). Because the bank provided sufficient
evidence to support its prima facie case for foreclosure, we reverse the order
involuntarily dismissing its complaint and remand for further proceedings.
Reversed and remanded.
KELLY and SALARIO, JJ., Concur.
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