Bank of New York v. Burgiel

248 So. 3d 237

• Court: District Court of Appeal of Florida
• Decided: May 21, 2018
• Docket: 5D17-1152
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

BANK OF NEW YORK MELLON F/K/A BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2007-OH1 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-OH1,

Appellant,

v. Case No. 5D17-1152

JULIAN BURGIEL, EGRET’S LANDING AT LAKE MARY HOMEOWNERS ASSOCIATION, INC. AND BOCA STEL, LLC,

Appellees. .

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Opinion filed May 25, 2018

Appeal from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.

Jennifer Lima-Smith and Tara M. McDonald, of Gilbert Garcia Group, P.A., Tampa, for Appellant.

Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Boca Stel, LLC.

No Appearance for Other Appellees.

ORFINGER, J. In this residential foreclosure case, Bank of New York Mellon, f/k/a Bank of New

York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-

OH1 Mortgage Pass-Through Certificates, Series 2007-OH1 (“Bank”) appeals a final

judgment of involuntary dismissal entered in favor of appellee Boca Stel, LLC for lack of

standing.1 We reverse and remand.

We review de novo a trial court’s ruling on a motion for involuntary dismissal.

Wilmington Sav. Fund Soc’y, FSB v. Louissaint, 212 So. 3d 473, 475 (Fla. 5th DCA 2017).

When reviewing the grant of an involuntary dismissal, we “view the evidence and all

inferences of fact in a light most favorable to the nonmoving party,” and affirm “only where

no proper view of the evidence could sustain a verdict in favor of the nonmoving party.”

Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So. 3d 58, 60 (Fla. 4th DCA 2012). We similarly

review de novo whether a party has standing to bring the foreclosure action. Sosa v.

Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011); Figueroa v. Fed. Nat’l Mortg.

Ass’n, 180 So. 3d 1110, 1115 (Fla. 5th DCA 2015).

In any mortgage foreclosure proceeding, a party seeking foreclosure must

demonstrate that it has standing to foreclose. E.g., Gorel v. Bank of N.Y. Mellon, 165 So.

3d 44, 45-46 (Fla. 5th DCA 2015); 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 both at the

inception of the foreclosure proceeding as well as at the time of final judgment. Bowmar

v. SunTrust Mortg., Inc., 188 So. 3d 986, 988 (Fla. 5th DCA 2016) (citing Pennington v.

1The trial court did not err by allowing Boca Stel to participate in the proceedings. Boca Stel took title to the property before Bank filed the foreclosure action. Thus, Boca Stel was an indispensable party. See U.S. Bank Nat’l Ass’n v. Bevans, 138 So. 3d 1185, 1188 (Fla. 3d DCA 2014).

2 Ocwen Loan Servicing, LLC, 151 So. 3d 52, 53 (Fla. 1st DCA 2014)). To prove standing

in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note,

a non-holder in possession of the note who has the rights of a holder, or a person not in

possession of the note who is entitled to enforce under section 673.3091 or section

673.4181(4), Florida Statutes. § 673.3011, Fla. Stat. (2014). A 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(21)(a).

In this case, Bank’s complaint alleged that it acquired the loan and possessed both

legal and beneficial interest in the note and mortgage prior to filing the complaint. This

language notwithstanding, attached to the complaint was a copy of the note with a blank

indorsement, making it payable to the bearer. There is no dispute that the original note

entered into evidence at trial was identical to the copy attached to the complaint. This

was sufficient evidence to show that Bank had standing both at the inception of the

foreclosure proceeding as well as at the time of final judgment; Boca Stel presented no

evidence to the contrary.2

2 There was also sufficient foundation to admit the business records. The foreclosure litigation specialist established that the records were reviewed for accuracy during the boarding process with which she was sufficiently familiar. See Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209, 216 (Fla. 5th DCA 2015) (explaining that successor servicer’s witness need not have personally participated in boarding process to ensure accuracy of records acquired from prior servicer of subject loan; rather, witness need only “demonstrate[] a sufficient familiarity with the ‘boarding’ process to testify about it”); Channell v. Deutsche Bank Nat’l Tr. Co., 173 So. 3d 1017, 1020 (Fla. 2d DCA 2015) (finding that successor mortgage servicer may establish admissibility of prior mortgage servicer’s loan records by testimony that successor servicer independently confirmed accuracy of predecessor’s records or by offering evidence that records were reviewed for accuracy prior to being integrated into successor servicer’s records system); Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1072 (Fla. 4th DCA 2015) (stating that successor mortgage servicer “itself may establish trustworthiness by independently confirming the accuracy of the third-party’s business records upon receipt”).

3 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

BANK OF NEW YORK MELLON F/K/A BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2007-OH1 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-OH1,

JULIAN BURGIEL, EGRET’S LANDING AT LAKE MARY HOMEOWNERS ASSOCIATION, INC. AND BOCA STEL, LLC,

Appeal from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.

Jennifer Lima-Smith and Tara M. McDonald, of Gilbert Garcia Group, P.A., Tampa, for Appellant.

Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Boca Stel, LLC.

ORFINGER, J.