BANK OF NEW YORK MELLON TRUST COMPANY, N.A., APPELLANT,
v.
DENNIS M. CONLEY, ET AL., APPELLEES

Fla. 4th DCA | 2016-01-06
No. 4D14-2430
WARNER and FORST, JJ., concur.
188 So. 3d 884 Florida District Court of Appeal, Fourth District (2016) Caution
Cited by 16 cases

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Holding

A bank seeking to foreclose must present competent substantial evidence of its standing, including proof of the precise chain of transfers for the note.


Headnotes

[1] A non-holder in possession attempting to establish standing to foreclose must present competent substantial evidence of its right to enforce the note.

[2] When a note is specially indorsed, a successor entity must prove the chain of transfers to establish its right to enforce the note.

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Facts & Procedural History

The bank attempted to foreclose on a note specially indorsed to JP Morgan Chase Bank. The bank presented a purchase agreement between two unrelated en…

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Opinion of the Court
STEVENSON, J.

STEVENSON, J.

In this foreclosure case’, the trial court granted the borrower’s motion for involuntary dismissal because the bank did not present competent substantial evidence of its standing to foreclose. We affirm.

The record in this case reveals that, at one time or another, at least six different banking entities claimed ownership of the borrower’s note. The problem is not the number of entities claiming, ownership, but the similarities of their names. Two of the entities are:

JP Morgan Chase Bank; and
JP Morgan Chase & Co.

Two others are:

• Bank of New York Company, Inc.; and
The Bank of New York Mellon Trust Company, National Association

We write to emphasize that when a non-holder in possession attempts to establish its right to enforce a note, and thus its standing to foreclose, the precise identity of each entity in the chain of transfers is crucial.

At bar, the plaintiff is:

The Bank of New York Mellon Trust Company, National Association fka The Bank of New York Trust Company, N.A. *885as Successor to JPMorgan Chase Bank N.A; as Trustee for RASC 2004KS4 [hereinafter “the Bank of New York Mellon”].

In pursuit of this foreclosure, the Bank of New York Mellon presented an original note bearing a special indorsement in favor of “JP Morgan Chase Bank, as Trustee.”1 At trial, a witness for the Bank of New York Mellon testified' that the note was deposited into a trust with -JP Morgan Chase Bank as the original trustee. The witness also testified that the Bank of New York Mellon became the successor trustee in April of 2006.

An excerpt of a Pooling and Servicing Agreement (PSA) was placed into evidence. The PSA created the Residential Asset Securities Corporation Series 2004-KS4 Trust and listed JPMorgan Chase Bank as the trustee. The witness agreed that the PSA did not establish that thé Bank of New-York Mellon had any interest in the note.

A 200 + page document was placed into evidence entitled “Purchase and Assumption Agreement by and between the Bank of New York Company, Inc, and JPMorgan Chase & Co.” (emphasis added). This purchase agreement was dated April 7, 2006. The witness was under the impression that the agreement established that the plaintiff purchased -the trust assets of JP Morgan Chase Bank. However, the document contradicts his testimony. Neither the plaintiff (the “Bank of New York Mellon Trust Company, N.A.”) nor the indorsee on the note and trustee of the RASC 2004KS4 Trust (“JP Morgan Chase Bank”) are parties to the purchase and assumption agreement.

“When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person.” § 673.2051(1), Fla. Stat. (2014). Where a-bank is seeking to enforce a note which is specially indorsed to another, the bank is a nonholder in. possession. Murray v. HSBC Bank USA 157 So.3d 355, 358 (Fla. 4th DCA), review dismissed, 171 So.3d 117 (Fla.2015). A nonholder in possession may-prove its right to enforce the note through: ,

(1) evidence of an effective transfer;
(2) -proof of purchase of the debt; o‘r
(3)' evidence of a valid assignment.

See Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1040 (Fla. 4th DCA 2015). A nonholder in possession: must account for its possession of the instrument by proving the transaction (or series of transactions) through which it acquired the note. Murray, 157 So.3d at 358.

At bar, the plaintiff attempted' to prove its right to enforce the note through proof of purchase of the debt. The plaintiffs proof of purchase, however, is an agreement between two entities that have no relationship to either the plaintiff or the indorsee. At most, the agreement éstab-lishes that somehow JP Morgan Chase & Co. became the trustee for the RASC 2004KS4 Trust and transferred/sold its interest, in the trust to a company-called The Bank of New York Company. The Agreement does not connect the indorsee of the note (JP Morgan Chase Bank) to the plaintiff (the Bank of New York Mellon).

This issue was discussed in Verizzo v. Bank of New York, 28 So.3d 976 (Fla. 2d DCA 2010). There, the Bank of New York attempted to. foreclose on a note indorsed *886to JPMorgan Chase Bank, as Trustee. Id. at 977. At summary judgment, the Bank of New York produced an assignment between MERS and the Bank of New York. Reversing .summary judgment, the court found:

The promissory note shows that Novas-tar endorsed the nóte to “JPMorgan Chase Bank, as Trustee.” Nothing in the record reflects assignment or endorsement of the note by JPMorgan Chase Bank to the Bank of New York or MERS. Thus, there is a genuine issue of material fact as to whether the Bank of New;Y.ork owns and holds the note and has standing to foreclose the mortgage.

Id. at 978 (emphasis added).

- At bar, there is nothing in the record connecting the indorsee, JP Morgan Chase Bank, to the plaintiff, the Bank of New York Mellon.2 The plaintiff thus failed to prove the series of transactions through which it acquired the note from the original lender. Murray, 157 So.3d at 358-59. For this reason, the Bank of New York Mellon did not establish its standing as nonhoíder in possession with the rights of a holder, and the defendant’s motion for involuntary dismissal was properly granted.

Affirmed.

WARNER and FORST, JJ., concur.


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Citator

Cited By

  • Elman v. U.S. Bank, 204 So. 3d 452 (Fla. 4th DCA 2009)
    …., 180 So. 3d 1170, 1173 (Fla. 4th DCA 2015) (citation omitted). Competent substantial evidence applies when we review a trial court’s factual findings, including those pertaining to standing, See, e.g., Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884, 884 (Fla. 4th DCA 2016); Amanzimtoti Props., LLC, v. Ocwen Loan Servicing, LLC, No. 4D15-2466, *1, 204 So. 3d 468, 466 (Fla. 4th DCA June 22, 2016). In foreclosure cases, we may be asked to review such findings. Many of our decisions on this and o…
  • Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189 (Fla. 2d DCA 2017)
    …f Am., N.A., 209 So. 3d 641, 644 (Fla. 2d DCA 2017). . Although the note was specially indorsed to Deutsche Bank, such an indorsement does not necessarily preclude Nationstar from enforcing the note. See Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884, 885 (Fla. 4th DCA 2016) (“Where a bank is seeking to enforce a note which is specially indorsed to another, the bank is a nonholder in possession.” (citing Murray v. HSBC Bank USA, 157 So. 3d 355, 358 (Fla. 4th DCA 2015))). Nevertheless, even if Na…
  • Supria v. Goshen Mortg., LLC, 232 So. 3d 422 (Fla. 4th DCA 2017)
    …of a holder. “A nonholder in possession may prove its right to enforce the note through: (1) evidence of an effective transfer; (2) proof of purchase of the debt; or (3) evidence of a valid assignment.” Bank of N.Y. Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884, 885 (Fla. 4th DCA 2016). “A nonholder in possession must account for its possession of the instrument by proving the transaction (or series of transactions) through which it acquired the note.” Id. (citing Murray v. HSBC Bank USA, 157 So. 3d 355, 3…

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