CHRISTINA D. BOWMAR, APPELLANT,
v.
SUNTRUST MORTGAGE, INC., ET AL., APPELLEES

Fla. 5th DCA | 2016-04-22
No. 5D14-2134
TORPY, BERGER and LAMBERT, JJ., concur.
188 So. 3d 986 Florida District Court of Appeal, Fifth District (2016) Positive Treatment
Also reported at: No. 5D14-2134.
Cited by 19 cases

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Holding

The court held that a final judgment of foreclosure entered in favor of a party that is no longer in the case constitutes fundamental error requiring reversal.


Headnotes

[1] A foreclosure plaintiff must have standing at both the time the foreclosure complaint is filed and when the final judgment is entered.

[2] The entry of a final judgment of foreclosure in favor of a nonparty constitutes fundamental error requiring reversal.

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Facts & Procedural History

SunTrust filed a foreclosure complaint, later assigning the note and mortgage to MTGLQ and amending the complaint to substitute MTGLQ as the plaintiff…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Christina D. Bowmar appeals the final judgment of foreclosure entered" by the trial court in favor of SunTrust Mortgage, Inc. (“SunTrust”). We reverse.

On October 30, 2008, SunTrust filed a foreclosure complaint against Bowmar alleging that she was" in default of her obligations under the adjustable rate promissory note and mortgage she executed on April 20, 2005. SunTrust assigned the note and the mortgage to MTGLQ Investors, L.P. (“MTGLQ”) on June 8,2010, and placed an undated special indorsement on the original note to MTGLQ. SunTrust filed a motion to amend its complaint on February 5, 2013, and the trial court granted the motion on March 25, 2013. The amended foreclosure 'complaint replaced SunTrust as the party plaintiff with MTGLQ.

A bench trial was held on May 14, 2014, at which MTGLQ called Frank Denson, an employee of its loan servicer, to testify as *988a witness. Denson’s testimony laid a predicate for the admission of business records. See Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 212-13 (Fla. 5th DCA 2015) (quoting Yisrael v. State, 993 So.2d 952, 956 (Fla.2008)). However, the only documents actually admitted into evidence were two assignments of the mortgage between SunTrust and Mortgage Electronic Registration Systems, Inc. (“MERS”) and the assignment of the note and mortgage from SunTrust to MTGLQ. The original note and mortgage, the acceleration letter, and the payment history were not admitted into evidence at trial. At. the close of the case, the trial court rendered the final judgment of foreclosure in favor of SunTrust, not MTGLQ. This was error.

A foreclosure plaintiff must have standing at both the time when the foreclosure complaint is filed and when the final judgment is entered. See Pennington v. Ocwen Loan Servicing, LLC, 151 So.3d 52, 53 (Fla. 1st DCA 2014) (citing Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013)). The entry of a final judgment of foreclosure in favor of a nonparty is fundamental error. See Beaumont v. Bank of New York Mellon, 81 So.3d 553, 554 (Fla. 5th DCA 2012) (citing Beseau v. Bhalani, 904 So.2d 641 (Fla. 5th DCA 2005)); see also Grudem v. Fed. Nat’l Mortg. Ass’n, — So.3d -, - n. 1, 41 Fla. L. Weekly D716, D717 n. 1, 2016 WL 1062830 at *3 (Fla. 5th DCA Mar. 18, 2016).

In this case, the trial court rendered judgment in favor of SunTrust even though SunTrust was no longer a party to the case after the amended complaint was filed. See Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323, 329-30 (Fla. 3d DCA 2013); Lindy’s of Orlando, Inc. v. United Elec. Co., 239 So.2d 69, 72-73 (Fla. 4th DCA 1970) (quoting Griffin v. Workman, 73 So.2d 844, 847 (Fla.1954)). MTGLQ acknowledges that the final judgment was rendered for SunTrust in error, but claims that it is “an obvious scrivener’s error.” Whether this error is categorized as a scrivener’s error or not, the trial court effectively rendered an unenforceable judgment. MTGLQ cannot enforce it because it was entered in favor of SunTrust. SunTrust cannot enforce it because it was no longer a party to the action and was no longer the holder of the note. Commercial Laundries, Inc. v. Golf Course Towers Assocs., 568 So.2d 501, 503 (Fla. 3d DCA 1990). Because SunTrust was not a party when the final judgment of foreclosure was rendered, the trial court’s issuance of the final judgment of foreclosure in favor of SunTrust constitutes fundamental error requiring reversal. See Grudem, — So.3d -, - n. 1, 41 Fla. L. Weekly D716, D717 n. 1, 2016 WL 1062830 at *3; Beaumont, 81 So.3d at 554; Beseau, 904 So.2d at 642.

Even if SunTrust were the proper party, entitlement to foreclosure requires the admission into evidence of “the subject note and mortgage, an acceleration letter, and some evidence regarding the ... outstanding debt on the note.” Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014) (citing Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979)). Denson’s discussion of these documents without their admission into evidence’ was .. insufficient to establish MTGLQ’s entitlement to foreclosure.1 See 66 Team, LLC v. JPMorgan Chase Bank Nat’l Ass’n, 187 So.3d 929 n. 2 (Fla. 3d DCA 2016) (citing Wolkoff v. Am. Home

*989 Mortg. Servicing, Inc., 153 So.3d 280, 281-82 (Fla. 2d DCA 2014)); see also Gonzalez v. BAC Home Loans Servicing, L.P., 180 So.3d 1106, 1108 (Fla. 5th DCA 2015) (reiterating that the testimony of a witness regarding business records not entered into evidence at trial is insufficient to prove standing in a foreclosure case (citing Schmidt v. Deutsche Bank, 170 So.3d 938, 941 (Fla. 5th DCA 2015))). Accordingly, we reverse the final judgment of foreclosure, and remand for a new trial. See Grudem, — So.3d -, 41 Fla. L. Weekly D716, 2016 WL 1062830 (reversing and remanding for a new trial when the trial court abruptly terminated the proceeding before the necessary documents were admitted into evidence).

REVERSED and REMANDED for NEW TRIAL

TORPY, BERGER and LAMBERT, JJ., concur.


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Citator

Cited By (12 total)

  • Home Outlet, LLC v. U.S. Bank Nat'l Ass'n, 194 So. 3d 1075 (Fla. 5th DCA 2016)
    …me Loans Servicing, L.P., 180 So. 3d 1106, 1108 (Fla. 5th DCA 2015) (finding “testimony of a witness regarding business records that are not entered at tidal is insufficient to prove standing in a foreclosure case”); Bowmar v. SunTrust Mortg., Inc., 188 So. 3d 986, 988-89 (Fla. 5th DCA 2016) (holding that discussion of documents was insufficient to establish entitlement to foreclose). Since the lost-note affidavit was not entered into evidence, and White did not establish that he had any personal knowledge as…
  • Bank OF NEW York Mellon v. Burgiel, 248 So. 3d 237 (Fla. 5th DCA 2018)
    …an v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). A foreclosure plaintiff must have standing both at the inception of the foreclosure proceeding as well as at the time of final judgment. Bowmar v. SunTrust Mortg., Inc., 188 So. 3d 986, 988 (Fla. 5th DCA 2016) (citing Pennington v. Ocwen Loan Servicing, LLC, 151 So. 3d 52, 53 (Fla. 1st DCA 2014) ). To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note, a non-holder in possess…
  • PMT NPL Fin. 2015-1 v. Centurion Sys., 257 So. 3d 516 (Fla. 5th DCA 2018)
    …237, 237, 2018 WL 2370456 (Fla. 5th DCA May 25, 2018). A foreclosure plaintiff must have standing both at the time the foreclosure complaint is filed as well as when judgment is entered. Burgiel, 248 So. 3d at 237 ; Bowmar v. SunTrust Mortg., Inc., 188 So. 3d 986, 988 (Fla. 5th DCA 2016). In this case, PMT was not the original plaintiff. However, as the substitute plaintiff, PMT stood in the shoes of the original plaintiff/mortgagee and acquired the standing, if any, of the original plaintiff at the time the…

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