PATRICK WALSH AND CATHERINE WALSH, APPELLANTS,
v.
BANK OF NEW YORK MELLON TRUST, ETC., ET AL., APPELLEES
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Bank of New York Mellon Trust sought to foreclose on Patrick and Catherine Walsh's mortgage. The appellate court reversed the trial court's foreclosure judgment, finding the bank failed to establish standing because it did not present admissible evidence of proper indorsement of the promissory note at the inception of the case.
No. The court held that the bank failed to establish standing because the note in the original complaint lacked indorsements, the amended complaint's note contained only an undated blank indorsement, and the witness testimony regarding possession was based on inadmissible evidence (a screenshot not offered or admitted at trial).
[1] A party seeking foreclosure must demonstrate standing at the inception of the case.
[2] Standing to foreclose cannot be remedied by subsequently obtaining standing.
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Join FLexlaw to unlock all legal intelligence“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.”
Establishes the foundational requirement that the foreclosing party must prove standing in a mortgage foreclosure action.
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Join FLexlaw to unlock all legal intelligenceThe borrowers Patrick and Catherine Walsh were defendants in a foreclosure action brought by Bank of New York Mellon Trust. The copy of the note attac…
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Patrick and Catherine, Walsh (borrowers) appeal the trial court’s final judgment of foreclosure entered in favor of Bank of New York Trust (the bank). Determining that the bank failed to prove standing, we reverse and remand for the entry of an involuntary dismissal.
“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (citations omitted). Additionally, a “party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011). Thus, in order to prove standing, the bank was required to introduce admissible evidence that it (or its agent) possessed a properly-indorsed note at the inception of the case. Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310-11 (Fla. 2d DCA 2013).
Here, the copy of the note attached to the original complaint did not contain any indorsements, and the copy of the note attached to the amended complaint contained an undated blank in-dorsement. Such proof was insufficient to demonstrate standing because “standing cannot be established by simply filing a note with an undated indorsement or al-longe months after the original complaint was filed.” Sorrell v. U.S. Bank Nat’l Ass’n, 198 So.3d 845, 847 (Fla. 2d DCA 2016) (citing Focht, 124 So.3d at 310; Cutler v. U.S. Bank Nat’l Ass’n, 109 So.3d 224, 226 (Fla. 2d DCA 2012)). In addition to introducing the note,' the bank presented a witness who testified that, based on his review of the business records, the bank had possession of the note at the time the bank filed its complaint. Yet, his testimony was not based on personal knowledge, but rather, on his review of a screenshot, which was not offered or admitted into evidence. Thus, that testimony was also insufficient to prove standing. Therefore, the trial court committed reversible error in entering final judgment of foreclosure in favor of the bank. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So.3d 1106 (Fla. 5th DCA 2015) (holding that the testimony of a witness regarding business records that are not entered into evidence at trial is insufficient to prove standing in a foreclosure case).
Accordingly, we reverse and remand for the entry of an involuntary dismissal. REVERSED and REMANDED.
COHEN, C.J., and SAWAYA, J., concur.
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Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…sing and remanding for judgment in favor of the defendant when "there was no evidence presented at trial" that could support the posttrial amendment of the complaint to add a new claim for damages); see also [*1172] Walsh v. Bank of N.Y. Mellon Tr., 219 So. 3d 929, 930 (Fla. 5th DCA 2017) (reversing for involuntary dismissal when there was no evidence to support a finding that the bank had standing at the time the complaint was filed); Diroberto v. Bayview Loan Servs. LLC, 199 So. 3d 526, 526 (Fla. 4th DCA 20…
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Green v. Green Tree Servicing, LLC, 230 So. 3d 989 (Fla. 5th DCA 2017)…ssession”). Thus, Green Tree properly concedes that its subsequent filing of the indorsed note with the amended complaint and at trial did not retroactively establish BAC’s standing at the inception of the suit. See Walsh v. Bank of N.Y. Mellon Tr., 219 So. 3d 929, 930 (Fla. 5th DCA 2017). Instead, Green Tree asserts that the merger between BAC and CHL Servicing, LP, established BAC’s standing at the time of filing the original complaint. “[I]n order to prove standing to foreclose based upon a merger, the su…
Authorities Cited
- McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)
- Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 3d 1106 (Fla. 5th DCA 2015)
- Cutler v. U.S. Bank Nat'l Ass'n for the Structured Asset Inv. Loan Tr., 109 So. 3d 224 (Fla. 2d DCA 2012)
- Sorrell v. U.S. Bank Nat'l Ass'n for Structured Asset Sec. Corp. Mortg. Pass-Through Certificates, 198 So. 3d 845 (Fla. 2d DCA 2016)