SIRINOR MEILLEUR, APPELLANT,
v.
HSBC BANK USA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF NOMURA HOME EQUITY HOME LOAN, INC. ASSET-BACKED CERTIFICATES, SERIES 2007-2, APPELLEE
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A homeowner appeals a final foreclosure judgment, arguing the lender lacked standing and the trial court violated due process by acting as an advocate rather than a neutral arbiter. The Fourth District Court of Appeal affirms the judgment, holding that the lender demonstrated standing through possession of the promissory note and that the trial court maintained its neutral role throughout the proceedings.
HSBC demonstrated standing as the note's holder through evidence of actual possession at the time the complaint was filed, and any inference of standing was not contradicted by evidence that Ocwen possessed the note on HSBC's behalf. The trial court did not violate due process because it maintained a neutral role throughout and did not offer tips, suggestions, recommendations, or impermissibly comment on evidence.
[1] A party demonstrates standing to bring a foreclosure action by attaching a copy of the note bearing an undorsement in blank to the complaint, and then stipulating to the…
[2] Possession of a note by a loan servicer on behalf of a trustee constitutes possession by the trustee for purposes of standing in a foreclosure action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This is evidence from which an inference can be made that HSBC 'had actual possession of the note at the timé the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.'”
Establishes the standard for proving standing in foreclosure cases through possession of the promissory note.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHSBC Bank filed a foreclosure complaint against Sirinor Meilleur and attached a copy of the promissory note bearing an undated indorsement in blank by…
The full statement of facts, procedural history, and disposition for this case are member content.
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On Motion for Clarification and Motion for Rehearing En Banc
We grant the appellant’s motion for clarification by way of a written opinion, deny the motion for rehearing fen banc, withdraw our prior per curiam affirmance,, and substitute the following opinion in its place, . , ■
Sirinor Meilleur- appeals a final judgment of foreclosure entered in favor of the appellee, HSBC Bank,- following a non-jury trial. Meilleur argues that the final judgment should be reversed because HSBC failed to demonstrate .standing and -because the court failed t.o act as a neutral arbiter. We reject both arguments and affirm. '
First, we note that the evidence presented by HSBC was sufficient to demonstrate its standing as the note’s holder. When HSBC filed its foreclosure complaint against Meilleur, it attached a copy .of the note, bearing an undated indorsement in blank by the original lender. At trial, Meilleur stipulated to the introduction of the original note, and stipulated that it bore the same indorsement in blank as the copy attached to the complaint.- This is evidence from which an inference can be made that HSBC “had actual possession of the note at the timé the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.” Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016).
This' inference- is not contradicted by testimony that Ocwen Loan Servicing, LLC, possessed the note, as such possession was on HSBC’s behalf. HSBC’s possession could be -inferred from evidence of the loan’s assignment to HSBC as the trustee of a particular trust, along with a limited power of "attorney - by HSBC to Ocwen as the servicer of that trust.
Second, we reject Meilleur’s argument that the trial court violated due prócess by going beyond its role as neutral arbiter. A trial 'judge who assumes the role of a litigant commits' a fundamental error, which may be raised for the first time on appeal. Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005). However, the conduct cited by Meilleur *514does not constitute error, much less fundamental error. The trial court did not offer any tips, suggestions, or recommendations, nor did it impermissibly comment on the evidence or suggest strategy to HSBC. The transcript indicates that the court maintained its neutral role throughout.
Accordingly, we affirm the final judgment of foreclosure.
Affirmed,
WARNER, CONNER and FORST, JJ., concur.
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The Bank OF NEW York Mellon v. Milford, 206 So. 3d 137 (Fla. 4th DCA 2016)…note into evidence. This created an inference that the bank was in possession of the note at the time it filed its complaint. Without any evidence to the contrary, this was sufficient to establish standing. See also Meilleur v. HSBC Bank USA, N.A., 194 So. 3d 512, 513 (Fla. 4th DCA 2016). Because the parties agree that, but for the standing issue, the bank was entitled to judgment, we reverse the trial court’s order of involuntary dismissal and remand with instructions to enter a judgment of foreclosure in…
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Deutsche Bank Nat'l Tr. Co. v. Applewhite, 213 So. 3d 948 (Fla. 4th DCA 2017)…sed the case because it was concerned that GMAC may have physically possessed the note at the time suit was filed, rather than the Bank, the concern did not justify an involuntary dismissal. Ortiz, 188 So. 3d at 925; Meilleur v. HSBC Bank USA, N.A., 194 So. 3d 512, 513 (Fla. 4th DCA 2016) (holding that the Ortiz inference of possession is not contradicted by evidence that the servicer possessed the note at the time suit was filed); Bank of N.Y. Mellon v. Milford, 206 [*952] So. 3d 137, 137-38 (Fla. 4th DCA 20…
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Aquasol Condo Assoc. v. HSBC Bank USA (Fla. 3d DCA 2018)
Authorities Cited
- Ortiz v. PNC Bank, 188 So. 3d 923 (Fla. 4th DCA 2016)
- Anderson Padalla v. State, 895 So. 2d 1251 (Fla. 2d DCA 2005)