LESLINE RUSSELL v. BAC HOME LOANS SVCNG L.P., ETC. , 239 So. 3d 98 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LESLINE RUSSELL,
Appellant,
v.
BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME
LOANS SERVICING LP,
Appellee.
No. 4D16-3908
[February 28, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE10021416.
Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.
Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller
and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for appellee.
ON MOTION FOR REHEARING
LEVINE, J.
We deny appellee’s motion for rehearing, but withdraw our previously
issued opinion and substitute the following in its place.
Appellant appeals a final judgment of foreclosure following summary
judgment. Appellant argues that a genuine issue of material fact existed
as to standing at the inception of the action because the endorsement on
the note attached to the complaint was different than the endorsements
on the original note filed with the court. We agree that a genuine issue of
material fact existed and therefore we reverse.
BAC Home Loans Servicing 1 filed a complaint for mortgage foreclosure
against appellant. A copy of the note attached to the complaint
contained an undated endorsement in blank by Q Lending, the lender
named in the note. A copy of the note attached to the amended
complaint contained an undated specific endorsement by Q Lending to
Taylor, Bean & Whitaker Mortgage Corp. as well as an undated
endorsement in blank by Taylor, Bean & Whitaker.
Appellant filed an answer and affirmative defenses, raising lack of
standing and pointing out the discrepancy in the endorsements.
Carrington Mortgage Services, LLC, was substituted as party plaintiff
and moved for summary judgment. In support of its motion, Carrington
submitted an affidavit from Bank of America’s assistant vice president
stating that Bank of America had physical possession of the note
endorsed in blank by Taylor, Bean & Whitaker as of May 19, 2010, the
date the foreclosure action was filed. A screenshot accompanying the
affidavit showed that Bank of America received the note on September
26, 2009. A second screenshot purported to show that the version of the
note with two endorsements was scanned into Bank of America’s system
on December 18, 2009.
The trial court granted summary judgment and entered a final
judgment in favor of Carrington.
Whether a party has standing to bring an action is reviewed de novo.
Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA
2014). An order granting summary judgment is also reviewed de novo.
Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA
2006).
“[A] party moving for summary judgment must show conclusively the
absence of any genuine issue of material fact, and the court must draw
every possible inference in favor of the party against whom a summary
judgment is sought.” Id. at 479-80. “The burden is initially on the
movant. Only where the movant tenders competent evidence in support
of his motion does the burden shift to the other party to come forward
with opposing evidence.” Id. at 480.
1 BAC later merged into Bank of America, N.A.
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“[S]ummary judgment should not be granted unless the facts are so
crystallized that nothing remains but questions of law.” Id. If the
evidence is conflicting, permits different reasonable inferences, or tends
to prove the issues, it should be submitted to the trier of fact. Darwiche
v. Bank of N.Y. Mellon, 185 So. 3d 1261, 1262 (Fla. 4th DCA 2016). “If
the ‘slightest doubt’ exists, then summary judgment must be reversed.”
Id. (citation omitted).
“A crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose” at the time the complaint is filed. McLean v. JP Morgan Chase
Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). “[S]tanding
may be established from a plaintiff’s status as the note holder, regardless
of any recorded assignments.” Id. “If the note does not name the
plaintiff as the payee, the note must bear a special endorsement in favor
of the plaintiff or a blank endorsement. Alternatively, the plaintiff may
submit evidence of an assignment from the payee to the plaintiff or an
affidavit of ownership to prove its status as a holder of the note.” Id.(citations omitted). “[I]f the plaintiff relies upon an affidavit of ownership
to prove its status as a holder of the note on the date the lawsuit was
filed, it is sufficient if the body of the affidavit indicates that the plaintiff
was the owner of the note and mortgage before suit was filed.” Id. at
174.
BAC’s possession of the endorsed note was insufficient to conclusively
establish standing at the time BAC filed the complaint. The copy of the
note attached to the original complaint contained an undated
endorsement in blank by Q Landing. However, the copy of the note
attached to the amended complaint, as well as the original note,
contained an undated specific endorsement by Q Lending to Taylor, Bean
& Whitaker who, in turn, executed an endorsement in blank. Because
only the holder of a note may convert a blank endorsement to a special
endorsement, this suggests that Taylor, Bean & Whitaker—and not
BAC—possessed the original note at the time BAC filed the complaint
and that Taylor, Bean & Whitaker executed a special endorsement as the
holder of the note after BAC filed the complaint. See § 678.3041, Fla.
Stat. (2016) (“A holder may convert a blank indorsement to a special
indorsement.”).
Additionally, the affidavit was insufficient to establish BAC’s standing.
Floyd v. Bank of America, N.A., 194 So. 3d 1071 (Fla. 5th DCA 2016), is
instructive. In Floyd, the Fifth District found that the bank’s affidavit
was insufficient to establish standing because it did not resolve all the
material issues in the case. The affidavit in Floyd did not offer any
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explanation of why a blank endorsement appeared on the note filed at
the hearing but not on the copy filed with the complaint. Therefore, a
material issue remained as to when the note was endorsed and how the
bank obtained standing.
Similarly, the affidavit in the instant case did not resolve the
inconsistency between the copy of the note attached to the original
complaint and the note attached to the amended complaint and filed
with the court in support of summary judgment. The affidavit did not
offer any explanation as to why a blank endorsement by Taylor, Bean &
Whitaker Mortgage Corp. appeared on the note filed in support of
summary judgment but a blank endorsement by Q Lending appeared on
the copy of the note filed with the original complaint. Like in Floyd, a
material issue remained as to when the note was endorsed and how BAC
obtained standing.
In sum, a genuine issue of material fact remained as to whether BAC
had standing when it filed the complaint. As such, we reverse the entry
of summary judgment and remand for further proceedings.
Reversed and remanded for further proceedings.
FORST and KUNTZ, JJ., concur.
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