Sirinor Meilleur v. HSBC Bank USA, N.A., etc.

District Court of Appeal of Florida

Sirinor Meilleur v. HSBC Bank USA, N.A., etc.

194 So. 3d 512, 2016 Fla. App. LEXIS 8833, 2016 WL 3190913

CourtDistrict Court of Appeal of Florida

DecidedJune 8, 2016

Docket4D15-117

StatusPublished

Cited by4 cases

This text of 194 So. 3d 512 (Sirinor Meilleur v. HSBC Bank USA, N.A., etc.) 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.

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Sirinor Meilleur v. HSBC Bank USA, N.A., etc., 194 So. 3d 512, 2016 Fla. App. LEXIS 8833, 2016 WL 3190913 (Fla. Ct. App. 2016).

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Opinion

On Motion for Clarification and Motion for Rehearing En Banc

PER CURIAM.

We grant the appellant’s motion for clarification by way of a written opinion, deny the motion for rehearing fen banc, withdraw our prior per curiam affirmance,, and substitute the following opinion in its place, . , ■

Sirinor Meilleur- appeals a final judgment of foreclosure entered in favor of the appellee, HSBC Bank,- following a non-jury trial. Meilleur argues that the final judgment should be reversed because HSBC failed to demonstrate .standing and -because the court failed t.o act as a neutral arbiter. We reject both arguments and affirm. '

First, we note that the evidence presented by HSBC was sufficient to demonstrate its standing as the note’s holder. When HSBC filed its foreclosure complaint against Meilleur, it attached a copy .of the note, bearing an undated indorsement in blank by the original lender. At trial, Meilleur stipulated to the introduction of the original note, and stipulated that it bore the same indorsement in blank as the copy attached to the complaint.- This is evidence from which an inference can be made that HSBC “had actual possession of the note at the timé the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.” Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016).

This' inference- is not contradicted by testimony that Ocwen Loan Servicing, LLC, possessed the note, as such possession was on HSBC’s behalf. HSBC’s possession could be -inferred from evidence of the loan’s assignment to HSBC as the trustee of a particular trust, along with a limited power of "attorney - by HSBC to Ocwen as the servicer of that trust.

Second, we reject Meilleur’s argument that the trial court violated due prócess by going beyond its role as neutral arbiter. A trial 'judge who assumes the role of a litigant commits' a fundamental error, which may be raised for the first time on appeal. Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005). However, the conduct cited by Meilleur *514 does not constitute error, much less fundamental error. The trial court did not offer any tips, suggestions, or recommendations, nor did it impermissibly comment on the evidence or suggest strategy to HSBC. The transcript indicates that the court maintained its neutral role throughout.

Accordingly, we affirm the final judgment of foreclosure.

Affirmed,

WARNER, CONNER and FORST, JJ., concur.

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On Motion for Clarification and Motion for Rehearing En Banc

PER CURIAM.

We grant the appellant’s motion for clarification by way of a written opinion, deny the motion for rehearing fen banc, withdraw our prior per curiam affirmance,, and substitute the following opinion in its place, . , ■

Sirinor Meilleur- appeals a final judgment of foreclosure entered in favor of the appellee, HSBC Bank,- following a non-jury trial. Meilleur argues that the final judgment should be reversed because HSBC failed to demonstrate .standing and -because the court failed t.o act as a neutral arbiter. We reject both arguments and affirm. '

First, we note that the evidence presented by HSBC was sufficient to demonstrate its standing as the note’s holder. When HSBC filed its foreclosure complaint against Meilleur, it attached a copy .of the note, bearing an undated indorsement in blank by the original lender. At trial, Meilleur stipulated to the introduction of the original note, and stipulated that it bore the same indorsement in blank as the copy attached to the complaint.- This is evidence from which an inference can be made that HSBC “had actual possession of the note at the timé the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.” Ortiz v. PNC Bank, Nat’l Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016).

This' inference- is not contradicted by testimony that Ocwen Loan Servicing, LLC, possessed the note, as such possession was on HSBC’s behalf. HSBC’s possession could be -inferred from evidence of the loan’s assignment to HSBC as the trustee of a particular trust, along with a limited power of "attorney - by HSBC to Ocwen as the servicer of that trust.

Second, we reject Meilleur’s argument that the trial court violated due prócess by going beyond its role as neutral arbiter. A trial 'judge who assumes the role of a litigant commits' a fundamental error, which may be raised for the first time on appeal. Padalla v. State, 895 So.2d 1251, 1252 (Fla. 2d DCA 2005). However, the conduct cited by Meilleur *514 does not constitute error, much less fundamental error. The trial court did not offer any tips, suggestions, or recommendations, nor did it impermissibly comment on the evidence or suggest strategy to HSBC. The transcript indicates that the court maintained its neutral role throughout.

Accordingly, we affirm the final judgment of foreclosure.

Affirmed,

WARNER, CONNER and FORST, JJ., concur.

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194 So. 3d 512, 2016 Fla. App. LEXIS 8833, 2016 WL 3190913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sirinor-meilleur-v-hsbc-bank-usa-na-etc-fladistctapp-2016.

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