THE BANK OF NEW YORK MELLON, APPELLANT,
v.
DANNY A. WELKER; PATRICIA WELKER; AND RENT TO OWN LEASING CO., INC., APPELLEES
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The Bank of New York Mellon appealed a summary judgment dismissing its mortgage foreclosure action against the Welkers. The court reversed, holding that because the Bank's status as a note holder was contested, summary judgment was improper, and that compliance with section 559.715 is not a condition precedent to foreclosure when the entity seeking to enforce is the holder of the note rather than merely an assignee.
The court reversed and remanded because summary judgment was improper when the Bank's status as a holder of the note was contested. The court held that providing notice under section 559.715 is not a condition precedent to foreclosure, and section 559.715 is inapplicable when the entity seeking to enforce the note is the holder rather than merely an assignee of the right to bill and collect.
[1] Providing notice under section 559.715, Florida Statutes, is not a condition precedent to foreclosure.
[2] Section 559.715, Florida Statutes, is inapplicable when the entity seeking to enforce a note is the holder of the note, not merely an assignee of the right to bill and co…
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Join FLexlaw to unlock all legal intelligence“As this court has previously held, providing the notice described in section 559.715 is not a condition precedent to foreclosure.”
Establishes that section 559.715 notice requirement is not a prerequisite to filing a foreclosure action.
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Join FLexlaw to unlock all legal intelligenceThe Bank, as Trustee, brought a foreclosure action against Danny and Patricia Welker on a note executed by them. Countrywide Home Loans, Inc. was the …
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The Bank of New York Mellon1 challenges the final summary judgment entered in favor of Danny and Patricia Welker and the order dismissing the Bank’s action. . ■
The' Bank, in its capacity as Trustee, brought an action to foreclose the mortgage and enforce the note executed by the Welkers. The Bank alleged it was’“the otraer and holder of the note” and attached copies of the note and mortgage to the1 complaint. Countrywide Home Loans, Inc., was the lender under the note, and a stamped indorsement in blank from Countrywide appears on the last page of the note. The indorsement itself is undated. The mortgage provides that the lender is Countrywide and that Mortgage Electronic Registration Systems, Inc., is Countrywide’s nominee.
In their answer and affirmative defenses to the amended complaint, the Welkers alleged that the Bank lacked standing because it was not the holder of the note at the inception of the action; that the Bank is not the real party in interest and that the action is being prosecuted by Specialized Loan Servicing, LLC (SPS), the Bank’s servicer; that the Bank failed to comply with paragraph 22 of the mortgage; that the indorsement on the note is not authentic; that the, note is not a negotiable instrument because it requires actions other than the payment of money and incorporates mortgage terms; that the
*1080Bank has not established its authority to bring the action as a Trustee; that SPS does not have legal capacity to act as the Bank’s agent; that the Bank failed to comply with section 559.715, Florida Statutes (2012); and that the Bank failed to properly verify the amended complaint.
The Welkers moved for summary judgment on the bases that the Bank failed to comply with paragraph 22 and section 559.715, both of which the Welkers asserted were conditions precedent to filing suit. At the hearing on the motion for summary judgment, counsel for the Welkers conceded that, the Bank had substantially complied with the paragraph 22 requirements and argued splely that the Bank failed to comply with section 559.715 as a condition ■ precedent. The court granted summary judgment.
As this court has previously held, providing the notice described in section 559.715 is pot a condition precedent to foreclosure. Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215, 1221 (Fla. 2d DCA 2016). Further, where the entity seeking to enforce the note is the holder of the note and not merely the assignee of the. right to bill 'and collect the debt, section 559.715 ‘ is inapplicable. See § 559.715 (“This part does not prohibit the assignment, by a créditor, of the right to bill and collect a consumer debt However, the assignee [of the right to bill and collect a consumer debt] must give the debtor written notice of such assignment as soon as practical after the assignment is made _” (emphasis added)); Brindise, 183 So.3d at 1219 (stating that the'right of thé note holder to enforce the note exists regardless of assignment). The Bank’s status as a holder of the note in this case was contested at the .time ’ of the summary judgment, making summary judgment improper regardless of the Welkers’ specific argument regarding section 559.715 s applicability.
Accordingly, we,reverse the order dismissing the Bank’s lawsuit and granting summary judgment, and we remand for reinstatement of the action.
Reversed and remanded with instructions.
NORTHCUTT and CRENSHAW, JJ., Concur.
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Bank OF Am., N.A. v. Siefker, 201 So. 3d 811 (Fla. 4th DCA 2016)…ther than the assignee of the right to bill and collect a consumer debt, brings the foreclosure suit, See Deutsche Bank Nat'l Tr. Co. v. Hagstrom, — So. 3d —, —, 41 Fla. L. Weekly D1671, 1673 (Fla. 2d DCA My 20, 2016); Bank of N.Y. Mellon v. Welker, 194 So. 3d 1078, 1080 (Fla. 2d DCA 2016). The bank touched on this issue in its brief, but in light of our holding, we need not address it. . Our holding does not turn on legislative history. Rather, we include the discussion of legislative history to underscore t…
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Balbina A. Young and Lawrence E. Young, Sr. v. Nationstar Mortg., LLC, 205 So. 3d 790 (Fla. 2d DCA 2016)…in blank. . This court has also held that where the party "seeking to enforce the note is the holder of the note and not merely the assignee of the right to bill and collect the debt, section 559.715 is inapplicable.” Bank of N.Y. Mellon v. Welker, 194 So. 3d 1078 (Fla. 2d DCA 2016); see also Hagstrom, 203 So. 3d 918, 41 Fla. L. Weekly D1671 (Fla. 2d DCA July 20, 2016). Here, Nationstar alleged in its complaint that it held the note and filed the original note indorsed in blank, but the Youngs alleged in thei…
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- Brindise v. U.S. Bank Nat'l Ass'n, 183 So. 3d 1215 (Fla. 2d DCA 2016)