JAMES M. HEYWARD v. WELLS FARGO BANK, N A

238 So. 3d 930

• Court: District Court of Appeal of Florida
• Decided: March 2, 2018
• Docket: 16-0339
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JAMES M. HEYWARD, ) ) Appellant, ) ) v. ) Case No. 2D16-339 ) WELLS FARGO BANK, N.A., ) ) Appellee. ) ___________________________________)

Opinion filed March 2, 2018.

Appeal from the Circuit Court for Sarasota County; Nancy K. Donnellan, Senior Judge and Rochelle T. Curley, Judge.

Michael P. Fuino of Weidner Law, P.A., St. Petersburg, for Appellant.

Kimberly S. Mello and Robert Schneider of Greenberg Traurig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, P.A., Ft. Lauderdale, for Appellee.

KELLY, Judge.

James Heyward appeals the final judgment of foreclosure entered in favor

of Wells Fargo Bank, N.A. Heyward raises a variety of issues in this appeal, none of

which provide a basis to reverse the final judgment. We write only to address his

contention that Wells Fargo's evidence was insufficient to prove it had standing. In August 2007 Heyward executed and delivered a note and mortgage to

World Savings Bank, F.S.B. The note was payable to "World Savings Bank, FSB, a

Federal Savings Bank, its successors and/or assignees, or anyone to whom this note is

transferred." In December 2007, World Savings amended its charter and bylaws to

change its name to Wachovia Mortgage, F.S.B.1 Heyward later defaulted on the note,

so in early 2009 Wachovia sued to foreclose. Later that year, Wachovia was converted

into a national bank with the name Wells Fargo Bank Southwest, National Association,

which then merged simultaneously into Wells Fargo Bank, N.A. Because of the merger,

Wachovia had Wells Fargo substituted as Plaintiff in the foreclosure action. In the

operative complaint, Wells Fargo alleges it "holds [the] Note and Mortgage by virtue of a

merger or chain of mergers with and/or name change of the original lender."

Wells Fargo's evidence at trial consisted of a copy of the original note and

mortgage, the originals of which had been filed with the court, the testimony of a Wells

Fargo loan verification analyst, and certifications from the Office of the Comptroller of

the Currency certifying that World Bank had changed its name to Wachovia in 2007 and

that Wachovia had merged into Wells Fargo in 2009. The note bore no endorsements

nor were any assignments attached to the note.

Heyward first contends Wells Fargo did not prove Wachovia had standing

when it filed to foreclose "because there was no evidence that Wachovia acquired the

Homeowner's note and mortgage via merger or that it possessed the original note on

the day the lawsuit was filed." This argument is nonsensical because it rests on the

In 2006 World Bank’s parent company merged with Wachovia. The name 1

change to Wachovia was part of the integration procedures the banks went through after the merger.

-2- fallacy that World Bank and Wachovia merged and therefore, the note must have

changed hands. It ignores the actual evidence introduced at trial. The evidence

showed that after Heyward executed and delivered the note to World Savings Bank,

World Savings Bank changed its name to Wachovia. The note along with the certificate

showing World Bank changed its name to Wachovia proved that Wachovia was the

originating lender and, thus, the owner and holder of the note and mortgage when it

filed to foreclose in 2009. See Wachovia Mortg., F.S.B. v. Goodwill, 199 So. 3d 346,

347 (Fla. 4th DCA 2016); see also Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212,

1213 (Fla. 4th DCA 2014).

Continuing in the same vein, Heyward argues Wells Fargo did not prove

standing at the time of trial. His argument, however, is that Wells Fargo was required to

prove its entitlement to enforce the note under section 673.3091, Florida Statutes

(2014), which provides for the enforcement of lost, destroyed, or stolen instruments.

The inapplicability of this statute is obvious. No evidence suggests the note was lost,

destroyed, or stolen. Rather, it shows that Wachovia merged into Wells Fargo. As a

result of this merger, Wells Fargo became Wachovia's successor and the owner and

holder of the note by operation of law. See 12 U.S.C. § 215a(e) (2012) (providing that

when a national bank merges with another banking entity, the "receiving association

shall be deemed to be the same corporation as each bank or banking association

participating in the merger" and that "[a]ll rights, franchises, and interests of the

individual merging banks or banking associations in and to every type of property (real,

personal, and mixed) and choses in action shall be transferred to and vested in the

receiving association by virtue of such merger without any deed or other transfer");

-3- Goodwill, 199 So. 3d at 348. The testimony of Wells Fargo's loan analyst confirmed

that Wells Fargo, Wachovia, and World Bank were the same entity.

In conclusion, Heyward's standing arguments fail because, among other

things, he bases them entirely on the notion that his note changed hands in some

fashion after he delivered it to World Savings Bank in 2007. On the contrary, the

evidence establishes that the note was never endorsed, assigned, or transferred and

that from the time Heyward executed it in 2007 until the time of trial, the note continued

to be held by the original lender despite the name change and the merger. Accordingly,

we affirm.

Affirmed.

SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.

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