Third District Court of Appeal State of Florida
Opinion filed August 8, 2018. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D17-368 and 3D16-2092 Lower Tribunal No. 13-21464 ________________
Wells Fargo Bank N.A., etc., Appellant,
vs.
Anthony Diz, Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jerald Bagley and Pedro P. Echarte, Jr., Judges.
Lapin & Leichtling, LLP, Alejandra Arroyave Lopez and Jan Timothy Williams, for appellant.
Korte & Wortman, P.A., Brian Korte and Scott J. Wortman (West Palm Beach), for appellee.
Before SUAREZ, FERNANDEZ, and SCALES, JJ.
FERNANDEZ, J. Wells Fargo Bank National Association, as Trustee for Morgan Stanley ABS
Capital I Inc. Trust 2005-HE5, Mortgage Pass-through Certificates Series 2005-
HE5 (“Wells Fargo”), appeals the trial court’s January 26, 2016 involuntary
dismissal of the cause based on the finding that Wells Fargo lacked standing.
Wells Fargo also appeals the January 16, 2017 agreed order as to the amount of
attorney’s fees and costs. We reverse and vacate the involuntary dismissal for the
reasons stated below, and remand for further proceedings. We reverse the fee
order as a consequence of our reversal of the involuntary dismissal, without further
discussion and without reaching the merits.
On June 18, 2013, Wells Fargo filed a foreclosure cause of action against,
inter alia, the Appellees, Anthony Diz and Luciann Rodriguez (“Diz”). The
complaint alleged Diz defaulted under the note and mortgage held by Wells Fargo
in the payment due January 1, 2008 and all subsequent payments. Attached to the
complaint was a copy of the original note containing a blank indorsement from the
originating lender. Also attached to the complaint was a verification from the then
loan servicer.
On January 26, 2016, at the bench trial, Wells Fargo entered into evidence
the original note, which contained the same blank indorsement as the copy
attached to the complaint. Wells Fargo also introduced documentary evidence
establishing its constructive possession of the note prior to the time of trial,
2 including prior to the filing of the complaint. Following the close of Wells Fargo’s
case, Diz made a motion for involuntary dismissal. The trial court granted the
motion for involuntary dismissal based on a finding that Wells Fargo “failed to
legally establish that the note was properly assigned to establish standing.” This
consolidated appeal followed.
Standing
We review the trial court’s standing determination de novo. Fed. Nat’l
Mortg. Ass’n v. McFayden, 194 So. 3d 418 (Fla 3d DCA 2016). We find that
Wells Fargo presented sufficient evidence of its standing to sue, and reverse the
trial court’s involuntary dismissal.
Standing to foreclose must be demonstrated with competent, substantial
evidence at the time of filing the lawsuit. See § 702.015, Fla. Stat. (2013); Fla. R.
Civ. P. 1.115.; McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173
(Fla. 4th DCA 2012). Under section 673.3011, Florida Statutes (2013), negotiable
instruments may be enforced by a holder, a non-holder in possession who has the
rights of the holder, or a person not in possession who nevertheless is entitled to
enforce the note. 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.” § 671.201(21)(a), Fla. Stat. (2013). A “bearer” is
defined as, inter alia, “a person in possession of a negotiable instrument [. . .] that
3 is payable to bearer or indorsed in blank.” § 671.201(5), Fla. Stat. (2013). “When
indorsed in blank, an instrument becomes payable to bearer and may be negotiated
by transfer of possession alone until specially indorsed.” § 673.2051(2), Fla. Stat.
2013.
In Ortiz v. PNC Bank, National Association, 188 So. 3d 923, 925 (Fla. 4th
DCA 2016), the Fourth District Court of Appeal held that where a copy of a note is
attached to a complaint and the plaintiff later files with the court the original note
in the same condition as the copy attached to the complaint, the combination of
such evidence is sufficient to establish that the plaintiff had actual possession of
the note at the time the complaint was filed and, therefore, had standing to bring
the foreclosure action, absent any testimony or evidence to the contrary. . Here,
Wells Fargo entered into evidence the original note, which contained the same
blank indorsement as the copy attached to the complaint. Under Ortiz, this would
be sufficient to establish that Wells Fargo had actual possession of the note at the
time of filing.
In addition, Wells Fargo’s standing was not defeated by its constructive
possession of the note because Wells Fargo adequately established its agency
relationship with the loan servicer. When an agency relationship exists, possession
may be actual or constructive. See McFayden, 194 So. 3d at 422-23 (Fla. 3d DCA
2016); Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So. 3d 1277, 1280 (Fla. 4th DCA
4 2016). Physical possession of a note by an agent gives the principal constructive
possession, sufficient to establish standing, so long as the principal retains the
power to exercise control over the note. Deustsche Bank Nat’l Trust Co. v.
Mobley, 212 So. 3d 511, 513 (Fla. 3d DCA 2017); Fed. Nat’l Mortg. Ass’n v.
Rafaeli, 225 So. 3d 264, 267 (Fla. 4th DCA 2017). Here, Wells Fargo presented
sufficient evidence of its constructive possession of the note and its agency
relationship with the loan servicer. The record does not contain testimony or
evidence to the contrary. Therefore, we reverse the trial court’s involuntary
dismissal.
Statute of Limitations
In the alternative, Diz argues that even if Wells Fargo sufficiently proved its
standing to bring the foreclosure action, the involuntary dismissal was right for the
wrong reason because the cause was barred under the applicable statute of
limitations. § 95.11(2)(c), Fla. Stat. (2013). There is no basis, in the record, which
would support this argument.1
Wells Fargo averred that Diz defaulted under the note and mortgage held by
Wells Fargo in the payment due January 1, 2008 and all subsequent payments. In
1 Under the tipsy coachman doctrine, where the trial court “reaches the right result, but for the wrong reasons,” an appellate court can affirm the decision only if “there is any theory or principle of law in the record which would support the ruling.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (emphasis added) (quoting Dade Cty. Sch. Bd. v.
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Third District Court of Appeal State of Florida
Opinion filed August 8, 2018. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D17-368 and 3D16-2092 Lower Tribunal No. 13-21464 ________________
Wells Fargo Bank N.A., etc., Appellant,
vs.
Anthony Diz, Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jerald Bagley and Pedro P. Echarte, Jr., Judges.
Lapin & Leichtling, LLP, Alejandra Arroyave Lopez and Jan Timothy Williams, for appellant.
Korte & Wortman, P.A., Brian Korte and Scott J. Wortman (West Palm Beach), for appellee.
Before SUAREZ, FERNANDEZ, and SCALES, JJ.
FERNANDEZ, J. Wells Fargo Bank National Association, as Trustee for Morgan Stanley ABS
Capital I Inc. Trust 2005-HE5, Mortgage Pass-through Certificates Series 2005-
HE5 (“Wells Fargo”), appeals the trial court’s January 26, 2016 involuntary
dismissal of the cause based on the finding that Wells Fargo lacked standing.
Wells Fargo also appeals the January 16, 2017 agreed order as to the amount of
attorney’s fees and costs. We reverse and vacate the involuntary dismissal for the
reasons stated below, and remand for further proceedings. We reverse the fee
order as a consequence of our reversal of the involuntary dismissal, without further
discussion and without reaching the merits.
On June 18, 2013, Wells Fargo filed a foreclosure cause of action against,
inter alia, the Appellees, Anthony Diz and Luciann Rodriguez (“Diz”). The
complaint alleged Diz defaulted under the note and mortgage held by Wells Fargo
in the payment due January 1, 2008 and all subsequent payments. Attached to the
complaint was a copy of the original note containing a blank indorsement from the
originating lender. Also attached to the complaint was a verification from the then
loan servicer.
On January 26, 2016, at the bench trial, Wells Fargo entered into evidence
the original note, which contained the same blank indorsement as the copy
attached to the complaint. Wells Fargo also introduced documentary evidence
establishing its constructive possession of the note prior to the time of trial,
2 including prior to the filing of the complaint. Following the close of Wells Fargo’s
case, Diz made a motion for involuntary dismissal. The trial court granted the
motion for involuntary dismissal based on a finding that Wells Fargo “failed to
legally establish that the note was properly assigned to establish standing.” This
consolidated appeal followed.
Standing
We review the trial court’s standing determination de novo. Fed. Nat’l
Mortg. Ass’n v. McFayden, 194 So. 3d 418 (Fla 3d DCA 2016). We find that
Wells Fargo presented sufficient evidence of its standing to sue, and reverse the
trial court’s involuntary dismissal.
Standing to foreclose must be demonstrated with competent, substantial
evidence at the time of filing the lawsuit. See § 702.015, Fla. Stat. (2013); Fla. R.
Civ. P. 1.115.; McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173
(Fla. 4th DCA 2012). Under section 673.3011, Florida Statutes (2013), negotiable
instruments may be enforced by a holder, a non-holder in possession who has the
rights of the holder, or a person not in possession who nevertheless is entitled to
enforce the note. 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.” § 671.201(21)(a), Fla. Stat. (2013). A “bearer” is
defined as, inter alia, “a person in possession of a negotiable instrument [. . .] that
3 is payable to bearer or indorsed in blank.” § 671.201(5), Fla. Stat. (2013). “When
indorsed in blank, an instrument becomes payable to bearer and may be negotiated
by transfer of possession alone until specially indorsed.” § 673.2051(2), Fla. Stat.
2013.
In Ortiz v. PNC Bank, National Association, 188 So. 3d 923, 925 (Fla. 4th
DCA 2016), the Fourth District Court of Appeal held that where a copy of a note is
attached to a complaint and the plaintiff later files with the court the original note
in the same condition as the copy attached to the complaint, the combination of
such evidence is sufficient to establish that the plaintiff had actual possession of
the note at the time the complaint was filed and, therefore, had standing to bring
the foreclosure action, absent any testimony or evidence to the contrary. . Here,
Wells Fargo entered into evidence the original note, which contained the same
blank indorsement as the copy attached to the complaint. Under Ortiz, this would
be sufficient to establish that Wells Fargo had actual possession of the note at the
time of filing.
In addition, Wells Fargo’s standing was not defeated by its constructive
possession of the note because Wells Fargo adequately established its agency
relationship with the loan servicer. When an agency relationship exists, possession
may be actual or constructive. See McFayden, 194 So. 3d at 422-23 (Fla. 3d DCA
2016); Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So. 3d 1277, 1280 (Fla. 4th DCA
4 2016). Physical possession of a note by an agent gives the principal constructive
possession, sufficient to establish standing, so long as the principal retains the
power to exercise control over the note. Deustsche Bank Nat’l Trust Co. v.
Mobley, 212 So. 3d 511, 513 (Fla. 3d DCA 2017); Fed. Nat’l Mortg. Ass’n v.
Rafaeli, 225 So. 3d 264, 267 (Fla. 4th DCA 2017). Here, Wells Fargo presented
sufficient evidence of its constructive possession of the note and its agency
relationship with the loan servicer. The record does not contain testimony or
evidence to the contrary. Therefore, we reverse the trial court’s involuntary
dismissal.
Statute of Limitations
In the alternative, Diz argues that even if Wells Fargo sufficiently proved its
standing to bring the foreclosure action, the involuntary dismissal was right for the
wrong reason because the cause was barred under the applicable statute of
limitations. § 95.11(2)(c), Fla. Stat. (2013). There is no basis, in the record, which
would support this argument.1
Wells Fargo averred that Diz defaulted under the note and mortgage held by
Wells Fargo in the payment due January 1, 2008 and all subsequent payments. In
1 Under the tipsy coachman doctrine, where the trial court “reaches the right result, but for the wrong reasons,” an appellate court can affirm the decision only if “there is any theory or principle of law in the record which would support the ruling.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (emphasis added) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
5 Dhanasar v. JP Morgan Chase Bank, N.A., 201 So. 3d 825 (Fla. 3d DCA 2016), we
held that where the foreclosing party alleged a failure to pay a specific payment
and all subsequent payments, and the action was filed within five years of a default
payment, the action survived the asserted statute of limitations bar. “[T]he statute
of limitations runs from the date of each new default providing the mortgagee the
right, but not the obligation, to accelerate all sums then due under the note and
mortgage.” Bartram v. U.S. Bank Nat’l Ass’n, 211 So. 3d 1009, 1019 (Fla. 2016);
-see also Bank of New York Mellon Corp. v. Anton, 230 So. 3d 502 (Fla. 3d DCA
2017). Here, Wells Fargo alleged and proved that Diz made no payments from
January 1, 2008 onwards (all subsequent payments). Moreover, the record does
not contain evidence that Diz made any payments since January 1, 2008, or that the
date of acceleration was more than five years prior to the filing of the complaint.
Therefore, we find no basis in the record to support the argument that the
complaint was time-barred.
We reverse and remand for entry of judgment in favor of Wells Fargo.
Reversed and remanded.