2. WRIGHT vs. DEUTSCHE BANK NATIONAL TRUST COMPANY [PDF]
"A copy of the note attached to the complaint listed GE Money Bank as the lender. During trial, the Bank introduced the original note into evidence, which contained an undated endorsement in favor of the Bank by GE Money Bank. Darren Yassen, a representative of the Bank’s servicing agent, admitted that he did not know when the endorsement was placed on the note. The Bank did not present testimony from any other witnesses or present any evidence as to the date of the endorsement."
" First, there was no evidence indicating when the special indorsement in favor of Washington Mutual Bank was placed onto the note. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 174 (Fla. 4th DCA 2012) ("Where the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit."). Secondly, the assignment is insufficient to establish standing, as the assignment was executed after the complaint was filed. See Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1195–96 (Fla. 4th DCA 2012) (reversing entry of final summary judgment because the bank failed to establish it had standing to foreclose when the evidence showed the assignment was dated one day after the complaint was filed). Finally, evidence that the note was transferred into the trust prior to the foreclosure action is insufficient by itself to confer standing because there was no evidence that the indorsee "
"Here, the only note in evidence was payable to First National Bank of Arizona and specially indorsed, ultimately, to Deutsche Bank as trustee. Nationstar's witness, Mr. Perez, testified that Deutsche Bank was the holder of the note. Thus, Nationstar failed to establish that Aurora had standing to bring the foreclosure suit as a holder. See Lacombe v. Deutsche Bank Nat'l Trust Co., 149 So. 3d 152, 155 (Fla. 1st DCA 2014) ("[N]one of Deutsche Bank's exhibits qualifies as an indorsement from [the note holder] to Deutsche Bank, an assignment from [the note holder] to Deutsche Bank, or an affidavit otherwise proving the plaintiff's standing to bring the foreclosure action on the note and mortgage at issue as a matter of law.")."
"The insufficiency of the documents in the record to establish Aurora’sstanding as a party entitled to enforce the note on February 7, 2008, was not curedby the evidence presented at the bench trial. According to the statement ofevidence and the proceedings, Nationstar relied on the testimony of its employee,Joan Osiemo. Ms. Osiemo began her employment with Nationstar as a “LitigationResearch Analyst” in 2012. Although she did not testify that she was everemployed by Aurora or any other previous servicer of the mortgage or holder ofthe note, she testified that “Nationstar purchased the assets of Aurora via an assetPurchase Agreement.” She was familiar with Aurora’s “platform,policies/procedures, etc. as Nationstar employed numerous former Auroraemployees who trained them and worked with the Nationstar employees onverifying data.” As described in the statement of evidence, Ms. Osiemo “statedthat she did know from business records the Plaintiff had possession of the originaldocuments prior to the Complaint and was therefore entitled to enforce the Noteand Mortgage.”
Ms. Osiemo’s knowledge “from business records” that Aurora possessed“the original documents prior to the Complaint” does not establish that Aurora hadstanding to enforce the note on February 7, 2008, the date the initial complaint was9 The insufficiency of the documents in the record to establish Aurora’s standing as a party entitled to enforce the note on February 7, 2008, was not cured by the evidence presented at the bench trial. According to the statement of evidence and the proceedings, Nationstar relied on the testimony of its employee, Joan Osiemo. Ms. Osiemo began her employment with Nationstar as a "Litigation Research Analyst" in 2012. Although she did not testify that she was ever employed by Aurora or any other previous servicer of the mortgage or holder of the note, she testified that "Nationstar purchased the assets of Aurora via an asset Purchase Agreement." She was familiar with Aurora’s "platform, policies/procedures, etc. as Nationstar employed numerous former Aurora employees who trained them and worked with the Nationstar employees on verifying data." As described in the statement of evidence, Ms. Osiemo "stated that she did know from business records the Plaintiff had possession of the original documents prior to the Complaint and was therefore entitled to enforce the Note and Mortgage." ial complaint was filed. The statement describing the Nationstar employee’s testimony does not indicate any personal knowledge she might have of any processes of Aurora, MERS, or 123Loan. Her opinion, based on her review of unspecified "business records," that Aurora "had possession of the original documents prior to the Complaint" and was "therefore entitled to enforce" the instruments does not overcome the actual allegation in the original complaint that Aurora did not possess the note on February 7, 2008; the Corporate Assignment of Mortgage attached to the amended complaint which showed the note and mortgage were not assigned by MERS to Aurora until April 9, 2008, two months after the original complaint was filed; and Aurora’s failure to file the undated blank indorsement and corporate assignment of mortgage until 2011 as opposed to at the time of filing the initial complaint.
It is possible for a witness to provide sufficient testimony to prove standing where the documentary evidence is insufficient. Stone v. BankUnited, 115 So. 3d 411 (Fla. 2d DCA 2013). In this case, however, the description of Ms. Osiemo’s testimony in the approved statement of the evidence does not amount to competent, substantial evidence to remedy the deficiencies and clear contradictions to her testimony contained in the undisputed documentary evidence. Our de novo review of the documentary evidence in the record and the statement of evidence and proceedings approved by the trial court compels us to conclude that the evidence was insufficient to establish that Nationstar’s predecessor plaintiff, Aurora, had standing to enforce the note via an action for foreclosure on February 7, 2008. Accordingly, the evidence in the record was insufficient to support the final judgment of foreclosure in favor of Nationstar due to the insufficient evidence to establish the predecessor plaintiff’s standing.1
The final judgment of foreclosure in favor of Nationstar is REVERSED. "
"We agree with the borrower that the bank failed to prove it had standing when it filed the action. We reach this conclusion for three reasons.
First, the note’s endorsement to the bank was undated. See Matthews v. Fed. Nat’l Mortg. Ass’n, 160 So. 3d 131, 133 (Fla. 4th DCA 2015) ("[T]he note introduced at trial . . . did not establish standing when the suit was commenced. The blank endorsement was undated.").
Second, the assignment was "backdated" after the bank filed the action. See id. ("Nor does the backdated assignment, standing alone, establish standing.") (citation omitted); Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277 n.1 (Fla. 4th DCA 2013) ("Allowing assignments to be retroactively effective would be inimical to the requirements of pre-suit ownership for standing in foreclosure cases.").
Third, on the factual issue of whether the note was assigned to the bank before or after the bank filed the original complaint, the bank’s witness possessed no knowledge or information other than what the assignment’s face reflected. See Lloyd, 160 So. 3d at 515 ("Plaintiff’s evidence supporting its claim that the assignment . . . ‘related back’ to before the suit commenced was also insufficient to prove standing in this case. The witness testified that he did not have any information, other than the document itself, to verify when the assignment took place.").
Based on the foregoing, we reverse and remand for entry of judgment for the borrower. "
The Bank of New York Mellon Corporation (“BNY Mellon” or “the bank”) seeks review of the decision of the Fourth District Court of Appeal in Condominium Ass’n of La Mer Estates, Inc. v. Bank of New York Mellon Corp., 137 So. 3d 396 (Fla. 4th DCA 2014), which certified conflict with Southeast Land Developers, Inc. v. All Florida Site & Utilities, Inc., 28 So. 3d 166 (Fla. 1st DCA 2010), and Moynet v. Courtois, 8 So. 3d 377 (Fla. 3d DCA 2009), on the issue of whether a default judgment is void when the complaint upon which a judgment is based on fails to state a cause of action. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For reasons provided below, we hold that a default judgment is voidable, rather than void, when the complaint upon which the judgment is based on fails to state a cause of action. We therefore approve the decision of the Fourth District in La Mer Estates and disapprove of the conflict cases to the extent they are inconsistent with this decision.
Failed to reestablish the lost note, prove its standing to foreclose on the note, prove the amount owed on the note, and did not prove compliance with a condition precedent listed in paragraph 22 of the mortgage.
Because the record does not contain sufficient evidence to support reestablishment of the lost page of the note or to prove the original plaintiff’s standing to enforce the note at the time the foreclosure action was filed -