U.S. Bank National Ass'n v. Roseman

214 So. 3d 728, 92 U.C.C. Rep. Serv. 2d (West) 159, 2017 WL 1013189, 2017 Fla. App. LEXIS 3453
CourtDistrict Court of Appeal of Florida
DecidedMarch 15, 2017
DocketNo. 4D16-876
StatusPublished
Cited by1 cases

This text of 214 So. 3d 728 (U.S. Bank National Ass'n v. Roseman) 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
U.S. Bank National Ass'n v. Roseman, 214 So. 3d 728, 92 U.C.C. Rep. Serv. 2d (West) 159, 2017 WL 1013189, 2017 Fla. App. LEXIS 3453 (Fla. Ct. App. 2017).

Opinion

Gerber, J.

The bank appeals from the trial court’s final order of involuntary dismissal of the bank’s foreclosure action against the homeowners. The bank argues the trial court erred in two respects: (1) by denying the admissibility of the original note into evidence; and (2) by involuntarily dismissing the bank’s foreclosure action as a result. We agree with both arguments and reverse for a new trial.

We present this opinion in five parts:

1. the parties’ pleadings;
[730]*7302. the trial proceedings;
3. the trial court’s error in denying the original note’s admissibility;
4. the trial court’s error in involuntarily dismissing the bank’s action; and
5. why the defendants’ argument in support of affirmance lacks merit.

1. The Parties’ Pleadings

The bank filed its verified complaint to foreclose on the defendants’ mortgage. The verified complaint alleged as follows. Defendant Jimenez executed a promissory note payable to SunTrust Mortgage, Inc. (“the lender”). On the same date, the defendants executed a mortgage in the lender’s favor to secure payment of the note. The defendants later defaulted on the note and mortgage. Before the bank filed the foreclosure action, the lender assigned the note and mortgage to the bank.

Attached to the verified complaint was the bank’s “Certification Regarding Possession of Original Promissory Note” pursuant to section 702.015(4), Florida Statutes (2013). In the certification, the bank’s representative stated, in pertinent part: “[Attached hereto is a correct copy of the original note and allonge(s), if any.”

The attachment contained copies of the note and an allonge. On the signature page of the note, just beneath defendant Jimenez’s signature, appeared an endorsement stating that the note was payable from the lender to the bank. However, stamped on top of the endorsement was the word “VOID.” In any event, the allonge stated that the note was payable from the lender to the bank. The allonge contained a date which preceded the bank’s filing of the verified complaint.

The defendants filed their answer and affirmative defenses. The defendants’ first affirmative defense stated:

Pursuant to 673.3081, Florida Statutes, Defendants specifically deny the authenticity of any document presented as the original promissory note. Defendants also specifically deny the authenticity of any signatures, and the authority of any person or persons making them, on the promissory note and mortgage and any documents related to them, including, but not limited to, any endorsement of the note or signature on the assignment of mortgage.

2. The Trial Proceedings

At the non-jury trial, the bank presented as its witness a “default service officer” who worked for the lender since before the lender issued the loan. The witness testified that the lender continued to service the loan on the bank’s behalf, as evidenced by a power of attorney which the bank provided to the lender. The bank introduced the power of attorney into evidence without objection.

The witness then identified the original note and allonge. The witness testified that the original note contained defendant Jimenez’s signature. The witness also testified that the note’s signature page contained not only the voided endorsement, but also another undated blank endorsement, as well as the attached allonge from the lender to the bank. The witness further testified that the lender’s allonge to the bank pre-dated the bank’s filing of the verified complaint and certification.

When the bank sought to introduce into evidence the original note and allonge, the defendants objected. The defendants did not state a traditional “legal” basis for their objection. Instead, the defendants argued that the original note should be inadmissible because its signature page differed from the signature page of the note’s copy which the bank attached to the verified complaint and certification, in that the [731]*731original note’s signature page, besides showing the voided endorsement shown on the note’s copy attached to the verified complaint and certification, also showed, on the opposite side of that page, the lender’s undated blank endorsement.

Before the bank could respond to the defendants’ objection, the defendants requested to voir dire the bank’s witness about the discrepancy. The trial court permitted the voir dire. During the voir dire, the bank’s witness testified she did not know when the undated blank endorsement was placed on the original note.

The defendants resumed their objection to introduction of the original note based on the discrepancy between the signature page on the note’s copy versus the signature page on the original note. The following discussion occurred:

DEFENDANTS’ COUNSEL: What is important, Your Honor, is the law requires a certification, and if you look at the complaint, there is also a certification ....
[[Image here]]
And if you look at the [certification], [the signatory] certified that [the attachment] ... was [a copy of] the original Note and you will see that the endorsement is missing. So, sometime after the Complaint was filed and the presentation of the [original] Note [at trial], an endorsement popped up. ... And this has nothing to do with an allonge, Your Honor. This has to do with what appears to be a Fraud on the Court because this endorsement would have been [included on the copy of the note]... attached to the Complaint.
[[Image here]]
Florida Statute requires, 702.015, that the bank must certify ... they have the original Note at the time of filing the Complaint and they are supposed to attach it to their certification.
[[Image here]]
Your Honor, the [undated blank] endorsement is not there [on the note copy attached to the verified complaint and certification].
[[Image here]]
COURT [speaking to the witness]: Do you know how it came to be that [undated blank endorsement] was placed on [the original note] or when it was placed on there?
WITNESS: I do not have any idea when the [undated blank endorsement] was placed on [the original note]. I really don’t.
[[Image here]]
.COURT [speaking to the bank’s coun: sel]: Any other questions.
BANK’S COUNSEL: I would still like to remind the Court that the copy of the Note that was attached to our Complaint as Exhibit A does bear an allonge from the original lender to [the bank].
COURT: But that was not the point that [the defendants’ counsel] was raising.

After the foregoing discussion, the trial court sustained the defendants’ objection to the admission of the original note, without stating a traditional “legal” basis for sustaining the objection. Shortly thereafter, the following discussion occurred:

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214 So. 3d 728, 92 U.C.C. Rep. Serv. 2d (West) 159, 2017 WL 1013189, 2017 Fla. App. LEXIS 3453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-national-assn-v-roseman-fladistctapp-2017.