Geweye v. Ventures Trust 2013-I-H-R , 189 So. 3d 231 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CAROLYN M. GEWEYE a/k/a Carolyn May )
Geweye, )
)
Appellant, )
)
v. ) Case No. 2D14-4668
)
VENTURES TRUST 2013-I-H-R; THE )
UNKNOWN SPOUSE OF CAROLYN M. )
GEWEYE a/k/a Carolyn May Geweye; THE )
UNKNOWN HEIRS, DEVISEES, )
GRANTEES, ASSIGNEES, LIENOR, )
CREDITORS, TRUSTEES, or other )
CLAIMANTS claiming by, through, under or )
against Virginia Larue Wright, deceased; )
BRUCE CARL WRIGHT a/k/a Bruce C. )
Wright, as heir of the Estate of Virginia )
Larue Wright, deceased; HOWARD EDWIN )
WRIGHT a/k/a Howard E. Wright, as heir of )
the Estate of Virginia Larue Wright, )
deceased; CAROLYN MAY GEWEYE, as )
heir of the Estate of Virginia Larue Wright, )
deceased; ANY AND ALL UNKNOWN )
PARTIES claiming by, through, under, and )
against the herein named individual )
defendant(s) who are not known to be dead )
or alive, whether said unknown parties may )
claim an interest as Spouses, Heirs, )
Devisees, Grantees, or other claimants; )
FOXWOOD AT PANTHER RIDGE )
HOMEOWNERS' ASSOCIATION, INC.; )
and JPMORGAN BY MERGER WITH )
WASHINGTON MUTUAL BANK FA, )
)
Appellees. )
)
Opinion filed March 16, 2016.
Appeal from the Circuit Court for Manatee
County; Thomas M. Gallen, Senior Judge.
H. Daniel McKillop of McKillop Law Firm,
Sarasota, for Appellant.
Shaib Y. Rios of Brock & Scott, PLLC, Fort
Lauderdale; and Orlando DeLuca and
Shawn Taylor of DeLuca Law Group, PLLC,
Fort Lauderdale, for Appellee Ventures
Trust 2013-I-H-R.
No appearance for remaining Appellees.
BLACK, Judge.
Carolyn Geweye appeals a final judgment of foreclosure entered in favor
of Ventures Trust 2013-I-H-R (Ventures), following a bench trial. We reverse because
Ventures failed to prove its standing to enforce the note. Because the standing issue is
dispositive, we withhold comment on the other issues raised by Ms. Geweye on appeal.
On June 28, 2012, JPMorgan Chase Bank, N.A. (Chase), filed a
foreclosure complaint alleging that it was the holder of the note and mortgage and/or
was entitled to enforce the note and mortgage.1 Chase attached a copy of the note
indorsed in blank and a copy of the mortgage. On February 8, 2013, Chase filed the
original note indorsed in blank and the original mortgage. Thereafter, on March 18,
2014, Chase moved to substitute Ventures as the party plaintiff. In its motion, Chase
1
The complaint also included a count to reform the legal description of the
property contained within the mortgage.
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alleged that subsequent to the commencement of the foreclosure action, the mortgage
was "transferred" to Ventures, who became a real party in interest. There was,
however, no mention of the note. On April 22, 2014, over Ms. Geweye's objection, the
court granted the substitution.
On May 16, 2014, a nonjury trial was held before a magistrate. Several
documents were introduced at trial, including the assignment of mortgage to Ventures.
The assignment of mortgage did not purport to assign any interest in the note, and the
parties do not dispute that there was no assignment of the note. At the conclusion of
Ventures' case, Ms. Geweye moved for involuntary dismissal based, in part, on
Ventures' failure to prove standing. The magistrate reserved ruling, and on June 25,
2014, he issued his report and recommended order finding that Ventures had standing
to foreclose. Ms. Geweye filed exceptions to the recommended order, but the circuit
court denied the exceptions following a hearing and entered final judgment in favor of
Ventures.
"A plaintiff alleging standing as a holder must prove it is a holder of the
note and mortgage both as of the time of trial and also that the (original) plaintiff had
standing as of the time the foreclosure complaint was filed." Russell v. Aurora Loan
Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015) (quoting Kiefert v. Nationstar
Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014)). There is no dispute that Chase
had standing when the foreclosure complaint was filed. As to Ventures, however, "an
order of substitution does not create standing." Sandefur v. RVS Capital, LLC, 41 Fla.
L. Weekly D265 (Fla. 4th DCA Jan. 27, 2016). Rather, "[a] plaintiff who is not the
original lender may establish standing to foreclose a mortgage loan by submitting a note
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with a blank or special [i]ndorsement, an assignment of the note, or an affidavit
otherwise proving the plaintiff's status as the holder of the note." Focht v. Wells Fargo
Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). Ventures submitted none of
these and thus failed to establish its standing at the time of trial.
Ventures asserted that the original note indorsed in blank, coupled with
the assignment of mortgage, provided it with standing. However, Chase filed the
original note indorsed in blank with the court long before Ventures was substituted as
the party plaintiff. As such, Ventures could not establish that it was the holder or
nonholder in possession for purposes of standing. See Creadon v. U.S. Bank N.A., 166
So. 3d 952, 954 (Fla. 2d DCA 2015). Further, Ventures failed to explain how the
assignment of mortgage, reflecting only the transfer of the mortgage and not the note,
provided it with standing; nothing in the assignment of mortgage conferred standing on
Ventures to enforce the note. See Russell, 163 So. 3d at 641-42; see also Vance v.
Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965) ("An assignment of the mortgage
without an assignment of the debt creates no right in the assignee."). And because no
assignment of note was introduced, we are compelled to reverse.
Because Ventures failed to present evidence of standing to enforce the
note at the time of trial, we reverse and remand with directions that the circuit court
enter an involuntary dismissal of the foreclosure complaint. See Creadon, 166 So. 3d at
954.
Reversed and remanded with directions.
WALLACE and LUCAS, JJ., Concur.
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