ALS-RVC, LLC v. Garvin

201 So. 3d 687, 2016 Fla. App. LEXIS 11717
CourtDistrict Court of Appeal of Florida
DecidedAugust 3, 2016
DocketNo. 4D15-2538
StatusPublished
Cited by2 cases

This text of 201 So. 3d 687 (ALS-RVC, LLC v. Garvin) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ALS-RVC, LLC v. Garvin, 201 So. 3d 687, 2016 Fla. App. LEXIS 11717 (Fla. Ct. App. 2016).

Opinion

MAY, J.

This foreclosure appeal challenges the trial court’s decisions on ALS-RVC, LLC’s (“bank”) standing and failure to comply with conditions precedent, which resulted in the trial court involuntarily dismissing the bank’s foreclosure action. The bank argues the trial court erred in both decisions. We agree and reverse.

The borrower executed a note and mortgage with American Brokers Conduit (“American Brokers”). A series of assignments of the mortgage took place, three to be exact.1 In one of the assignments, the bank assigned the note, mortgage, and other loan documents to Maxim Credit Corp. (“Maxim”).

The borrower sent a letter to the then current lender advising that he entered into active military service on March 22, 2009, which affected his ability to make his monthly payments. He also advised that the Servicemembers Civil Relief Act (“SCRA”) set a maximum limit on interest he could be charged. More than a year after completion of his active military service, the borrower defaulted by failing to make his monthly payment.

On November 14, 2012, the bank filed a foreclosure action against the borrower. It alleged that it was entitled to enforce the note, pursuant to section 673.3011(1), Florida Statutes. It alleged compliance with all conditions precedent to note acceleration and mortgage foreclosure. And, it alleged that Maxim’s interest was subordinate to its own.

The bank attached a copy of the note and mortgage to its complaint. The copy contained a blank endorsement from American Brokers. The interest rate on the note was originally 7.75%. A note addendum made the interest rate adjustable.

The borrower filed an amended answer and affirmative defenses, including lack of standing and failure to comply with conditions precedent (paragraphs 15 and 22 of the mortgage). The bank later filed the original mortgage and note, which was identical to the copy of the note attached to the complaint.

The case proceeded to a non-jury trial. The parties stipulated to the original note and mortgage and the trial court admitted them. A loan representative for the bank testified: “I was actually in possession of the original note and mortgage prior to the filing of the lawsuit. Before the suit was filed "I provided the original documents to my attorney.”

The loan representative then testified that he referred the loan to foreclosure because it was in default. The trial court admitted the payment history and default notices. He testified that the bank is the note owner. He then testified to the principal balance and total amount due, with interest being the difference between the two.

On cross-examination, the trial court admitted by stipulation a letter from the borrower noting that he was on active duty from March 2009 until March 2010. During the borrower’s case, the trial court admitted the three assignments of mortgage.

The borrower moved for involuntary dismissal. He argued there was no evidence the default notice was mailed and the cure amount was incorrect, and asked the court [690]*690to reconsider some of its evidentiary rulings. He also argued the.bank’s failure to reduce the interest during his active duty violated the law. And, he argued the assignments of mortgage were inconsistent and the assignment from the bank to Maxim irrevocably assigned the note and mortgage prior to the foreclosure action.

The bank responded that it possessed the blank endorsed original note, attached a copy of the identical note to the complaint, and proved its holder status. The bank suggested that even if it unlawfully obtained the note, it was still entitled to enforce it because of the blank endorsement. The bank then argued the borrower failed to prove he would have paid the mortgage had the default notice correctly stated the amount owed. Finally, the bank argued that even if it erred in applying the correct interest rate, it still proved its case and the final judgment should be entered for a lesser amount.

The trial court entered an order involuntarily dismissing the bank’s foreclosure action. It held the bank “failed to prove standing and further failed to prove compliance with all conditions precedent.” The court explained:

Here, the record evidence is insufficient to demonstrate [the bank] had standing to foreclose the mortgage at the time the complaint was filed. The original note contains a blank endorsement. However, there exist multiple assignments assigning the subject note and mortgage to other entities....
Additionally, it has been established •that [the borrower] was on active duty in the military. [The borrower] had made' the holder of the note and mortgage aware of his military status.... [The bank] failed to show compliance with the Service Member’s Relief Act (SMRA), Specifically the breach letters ... do not reflect any reduction in the interest rate when [the borrower], was on active military status.... Again,, the payment history does not reflect any reduction in the interest rate as required by the SMRA.
[T]his Court finds the evidence insufficient to demonstrate [the bank] had standing to foreclose the mortgage at the time the complaint was filed and further that [the bank] complied with all conditions precedent.

The bank moved for rehearing, which the trial court denied. The bank now appeals.

The bank argues the evidence showed it had physical possession of the original note and mortgage before it filed the complaint, and both the original note and the copy attached to the complaint contained a blank endorsement. The borrower responds that it introduced an assignment, showing the bank transferred its rights and interest to Maxim before filing the- complaint. The mortgage does not follow the note when parties express their intent to the contrary, as happened here. Thus, even if the bank was the holder, it cannot foreclose on the mortgage unless one of the contractual conditions was met.

We review the legal issue of whether a party has standing to bring an action de novo. Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965, 967 (Fla. 4th DCA 2013). We also have de novo review of involuntary dismissals. Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014) (citation omitted).

It goes without saying at this point in foreclosure proceedings, “the party seeking foreclosure must demonstrate that it has standing to foreclose” when the complaint is filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “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 [it] had [691]*691standing as of the time the foreclosure complaint was filed.” Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014).

Our decision in Ortiz v. PNC Bank, National Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016), is instructive on the standing issue. There, we held that if a bank admits the original note, either endorsed to the bank or containing a blank endorsement, in the same condition as the copy it attached to the complaint, the evidence is sufficient to establish standing at the time the complaint is filed absent evidence to the contrary. Id. at 924-25.

Here, the bank attached a copy of the blank endorsed note when it filed the complaint.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Madl v. Wells Fargo Bank
District Court of Appeal of Florida, 2017
Mathis v. Nationstar Mortgage, LLC
227 So. 3d 189 (District Court of Appeal of Florida, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
201 So. 3d 687, 2016 Fla. App. LEXIS 11717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/als-rvc-llc-v-garvin-fladistctapp-2016.