MARCIA SUPRIA, APPELLANT,
v.
GOSHEN MORTGAGE, LLC, IN SUBSTITUTION FOR THE ORIGINAL PLAINTIFF CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY FSB, AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST, SERIES 2012-13, APPELLEE
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In this mortgage foreclosure case, the appellate court reversed the trial court's judgment because the mortgagee (Goshen Mortgage) failed to establish standing to foreclose. The court held that a nonholder in possession seeking to enforce a note must prove a valid chain of transfers from the original holder, and here multiple assignments in the chain were invalid or ineffective.
No. The court held that Goshen Mortgage failed to establish standing because it could not prove a valid chain of transfers from the original holder. The first two assignments were invalid because nothing demonstrated the assignors had authority or interest to transfer the note. The third and fifth assignments transferred only the mortgage (not the note), which is insufficient because a mortgage follows the debt, not the other way around.
[1] A nonholder in possession may prove its right to enforce a note through evidence of an effective transfer, proof of purchase of the debt, or evidence of a valid assignmen…
[2] A nonholder in possession must account for its possession of an instrument by proving the transaction or series of transactions through which it acquired the note.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the three alternative methods by which a nonholder in possession may prove enforcement rights
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Join FLexlaw to unlock all legal intelligenceThe original promissory note was issued by Centerpointe Financial, Inc. The note and mortgage were transferred multiple times through a complex chain …
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In this mortgage foreclosure case, the underlying mortgage was passed around like the flu, giving rise to a complexity of ownership that frustrated the appellee’s attempts to demonstrate standing at trial. To the answer brief, the appellee attached a chart of the ownership lineage of the mortgage and note, with different types of arrows pointing in all directions, a valiant effort which demonstrated that the trans*424fer history here defies pictorial representation.
On the original note, Cénterpointe Financial, Inc. is the lender. There is no blank indorsement from Centerpointe. There was an allonge purporting to effect a transfer, but the allonge was lost and not produced at trial. Appellee conceded at trial that it was not a holder of the note, but contended that it qualified as a non-holder in possession with the rights 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, 358 (Fla. 4th DCA 2015)).
Therefore, “[t)q prove standing as a nonholder in possession with the rights of a holder, the plaintiff must prove the chain- of transfers starting with' the first holder of the note.” PennyMac Corp. v. Frost, 214 So.3d 686, 689 (Fla. 4th DCA 2017): (citing Murray, 157 So.3d at 357-58). “Where the plaintiff ‘cannot prove.that [a transferor] had any right to enforce the note, it cannot dei-ive any right from, [the transferor] and is not a nonholder in possession of the instrument with the rights of a holder to enforce.’” PennyMac, 214 So.3d at 689 (quoting Murray, 157 So.3d at 359).
Here, the first assignment of the note was invalid, because nothing in evidence demonstrated that the assignor had the authority to transfer or assign an interest in the note. Similarly, a second assignment was also invalid because nothing demonstrated that the- assignor had an interest in the note that it could transfer. Among other problems, the third and fifth assignments transferred the mortgage, but not the note. The fourth assignment was infirm because of the problems with the earlier assignments.
One legal problem created by the third and fifth assignment is that a “mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Tilus v. Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2016). “ ‘[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt’ — not the other way around.” Peters v. Bank of N.Y. Mellon, 227 So.3d 175, 180 (Fla. 2d DCA 2017) (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938)). The oblique reference in the assignments of mortgage to “moneys now owing” was not sufficient to- transfer an interest in the note. See Jelic v. BAG Home Loans Servicing, LP, 178 So.3d 523, 525 (Fla. 4th DCA-2015).
Because appellee failed to establish its standing to foreclose, we reverse the final judgment and remand for the entry of judgment for the appellant.
May and Klíngensmith, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Supria v. Goshen Mortg., LLC, 257 So. 3d 503 (Fla. 4th DCA 2018)
Authorities Cited
- Johns v. Gillian, 134 Fla. 575 (Fla. 1938)
- Murray v. HSBC Bank USA, 157 So. 3d 355 (Fla. 4th DCA 2015)
- Tilus v. AS Michai LLC, 161 So. 3d 1284 (Fla. 4th DCA 2015)
- Peters v. The Bank OF NEW York Mellon, 227 So. 3d 175 (Fla. 2d DCA 2017)
- Bank OF NEW York Mellon Tr. Co., N.A. v. Conley, 188 So. 3d 884 (Fla. 4th DCA 2016)
- Jelic v. BAC Home Loans Servicing, LP, 178 So. 3d 523 (Fla. 4th DCA 2015)
- Pennymac Corp. v. Frost, 214 So. 3d 686 (Fla. 4th DCA 2017)