JOHN D. FIELDING, APPELLANT,
v.
PNC BANK NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO NATIONAL CITY BANK SUCCESSOR BY MERGER TO FIDELITY FEDERAL BANK AND TRUST, HARBOUR LIGHTS HOMEOWNERS ASSOCIATION, ET AL., APPELLEES.

Fla. 5th DCA | 2018-02-02
No. Case No. 5D16–440
239 So. 3d 140 Florida District Court of Appeal, Fifth District (2018) Positive Treatment
Cited by 4 cases

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Synopsis

John Fielding appeals a foreclosure judgment entered by the trial court in favor of PNC Bank. The Fifth District Court of Appeal reversed and remanded because PNC Bank failed to establish standing at the inception of the foreclosure action, as it did not prove that its predecessor National City Mortgage was entitled to enforce the original note at the time the complaint was filed.


Holding

PNC Bank failed to establish standing at the inception of the foreclosure case because it did not prove that National City Mortgage was entitled to enforce the lost note when the complaint was filed. The absence of proof regarding NCM's connection to the merger chain and its entitlement to enforce the note is fatal to establishing standing. Therefore, the judgment of foreclosure is reversed and the case is remanded with instructions to enter an involuntary dismissal.


Headnotes

[1] A party seeking to foreclose on a mortgage must demonstrate standing at the time the foreclosure complaint is filed and when the final judgment is entered.

[2] A foreclosure plaintiff may establish standing through a corporate merger if the surviving entity proves it acquired all assets, including the note and mortgage, of the a…

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Key Quotes

“A foreclosure plaintiff must have standing at both the time when the foreclosure complaint is filed and when the final judgment is entered.”

Establishes the temporal requirement for standing in foreclosure cases—must exist at inception and at final judgment

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Facts & Procedural History

In August 2003, Borrower executed a note and mortgage with Fidelity Federal Bank and Trust. In April 2007, the Original Lender converted to a national…

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Opinion of the Court
WALLIS, J.

WALLIS, J.

John Fielding ("Borrower") appeals the entry of final judgment of foreclosure in favor of PNC Bank, National Association, successor by merger to National City Bank, successor by merger to Fidelity Federal Bank and Trust ("Appellee"). Because Appellee did not establish standing at the inception of the case, we reverse and remand with instructions for the trial court to enter an involuntary dismissal.1

In August 2003, Borrower executed a note and mortgage agreement with Fidelity Federal Bank and Trust ("Original Lender"). In April 2007, Original Lender converted to a national bank, assumed the name Fidelity Bank, National Association, and then merged into National City Bank ("NCB"). In July 2008, National City Mortgage ("NCM") filed a foreclosure complaint against Borrower. In November 2009, NCB merged with Appellee. In June 2010, NCM moved to substitute Appellee as plaintiff as the successor by merger to NCB, which was successor by merger with Original Lender.

At trial, Appellee called its records custodian, Omar Jerome, who testified that Original Lender merged with NCB and then NCB merged with Appellee. Jerome identified two documents relevant to the merger chain and central to this appeal: (1) a copy of the certificate of merger for Original Lender, Fidelity Federal Bank and Trust, renamed Fidelity Bank, to NCB; and (2) a copy of certificate of merger for NCB to Appellee from the comptroller of currency. The trial court ultimately entered a final judgment of foreclosure for Appellee.

"A trial court's decision as to whether a party has satisfied the standing *142requirement is reviewed de novo." Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015) (quoting Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011) ). "A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose." Id. at 45-46 (quoting McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) ). "A foreclosure plaintiff must have standing at both the time when the foreclosure complaint is filed and when the final judgment is entered." Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016). "[T]he mortgage follows the note." US Bank, NA for Truman 2012 SC2 Title Tr. v. Glicken, 228 So.3d 1194, 1196 (Fla. 5th DCA 2017). As such, a party entitled to enforce the note has standing to foreclose on a mortgage. Id.; Khan v. Bank of Am., N.A., 58 So.3d 927, 928 (Fla. 5th DCA 2011).

According to Florida Statutes, a party entitled to enforce an instrument is: "(1) The holder of the instrument; (2) A nonholder in possession of the instrument who has the rights of a holder; or (3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4)." § 673.3011, Fla. Stat. (2016). Holder is defined as, inter alia , "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Id. § 671.201.

The rights to enforce the note may be transferred through assignment, purchase, or other effective transfer. Segall v. Wachovia Bank, N.A., 192 So.3d 1241, 1243 (Fla. 4th DCA 2016). "One type of such an 'effective transfer' is a corporate merger, whereby a surviving entity may enforce the note and mortgage of the predecessor." Id. When a merger becomes effective, the party corporations of the merger merge into the surviving corporation, and the surviving corporation owns all real estate and other property and is liable for all the liabilities and responsibilities of each corporation party to the merger. § 607.1106, Fla. Stat. (2016). However, to establish standing by merger in a foreclosure action, "the surviving entity [must] prove that it 'acquired all of [the absorbed entity's] assets, including [the] note and mortgage, by virtue of the merger.' " Segall, 192 So.3d at 1245 (quoting Fiorito v. JP Morgan Chase Bank, Nat'l Ass'n, 174 So.3d 519, 521 (Fla. 4th DCA 2015) ).

Here, NCM filed its initial complaint of foreclosure with a lost note count and attached a copy of the note payable to Original Lender. Borrower raised standing as an affirmative defense. To establish standing at the inception of the case, Appellee must show that NCM, its predecessor, was entitled to enforce the lost note at the time NCM filed the complaint. See Bowmar, 188 So.3d at 988. Appellee failed to provide evidence of NCM's entitlement to enforce the note. Instead, Appellee established that Original Lender merged with NCB, which then merged with Appellee, leaving NCM out of the merger chain at trial. Based on the trial evidence, NCM has no connection to Original Lender, NCB, or Appellee.2

*143Our court has recently held, on multiple occasions, that banks must establish and explain the relationship between the entities in the entire chain of mergers in order to establish standing. See, e.g., Green v. Green Tree Servicing, LLC, 230 So.3d 989, 991 (Fla. 5th DCA 2017) ("The merger involved BAC and CHL Servicing, LP, while the original note listed CHL, Inc., as the original lender. Neither Green Tree nor its witness explained the relationship between these two distinct entities."); Wisman v. Nationstar Mortg., LLC, --- So.3d ----, ----, 42 Fla. L. Weekly D2251, D2252, 2017 WL 4699718 (Fla. 5th DCA Oct. 20, 2017) ("While Nationstar claims that CHL Inc., CHL Servicing, LP and BAC are the same entity, its own evidence demonstrates otherwise. ... [T]he evidence fails to show that CHL Inc. was affiliated with either CHL Servicing, LP or BAC."). Therefore, this absence of proof is fatal to establishing standing. See Green, 230 So.3d at 991 ; Wisman, --- So.3d at ----, 42 Fla. L. Weekly at D2252 ; Bowmar, 188 So.3d at 988. Accordingly, we reverse and remand with instructions for the trial court to enter an involuntary dismissal.

REVERSED and REMANDED with Instructions.

COHEN, C.J. and ORFINGER, J., concur.


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Citator

Cited By

  • U.S. Bancorp v. Taharra Assets 5545, Inc., 378 So. 3d 630 (Fla. 4th DCA 2024)
  • Certo v. The Bank of N.Y. Mellon, 268 So. 3d 901 (Fla. 1st DCA 2019)
    …etent, substantial evidence of standing. Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013). On the other hand, it is insufficient for the plaintiff to rely on its acquisition of the other entity. See Fielding v. PNC Bank Nat’l Ass’n, 239 So. 3d 140, 142-43 (Fla. 5th DCA 2018); Kyser v. Bank of Am., N.A., 186 So. 3d 58, 61 (Fla. 1st DCA 2016) (despite testimony of merger, witness gave no testimony as to what assets exactly were acquired); Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n, 174 So…

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