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Wells Fargo Bank, N.A. v. Ayers

Florida Court of Appeals, Fourth District

March 29, 2017

WELLS FARGO BANK, N.A., Appellant,
v.
BRYAN AYERS, MINDY L. AYERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR MORTGAGE MOVERS, INC., THE TURTLE RUN HOMEOWNERS' ASSOCIATION, INC., ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, OR AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISES, GRANTEES, OR OTHER CLAIMANTS, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Peter M. Weinstein, Judge; L.T. Case No. CACE10048225.

          Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.

          Bruce C. Botsford of Bruce Botsford, P.A., Fort Lauderdale, for Appellees Bryan Ayers and Mindy Ayers.

          PER CURIAM.

         In this mortgage foreclosure action, Wells Fargo appeals from a final judgment entered upon an order granting the borrowers' motion for an involuntary dismissal. We conclude that Wells Fargo waived any argument that the trial court erred in involuntarily dismissing the action before Wells Fargo rested its case. However, because Wells Fargo submitted evidence in support of its lost note claim that was sufficient to preclude an involuntary dismissal, we reverse the final judgment and remand for a new trial.

         In December 2010, Wells Fargo filed a foreclosure complaint against the borrowers. Attached to the complaint were copies of the mortgage and note containing an allonge indorsed in blank. Wells Fargo later amended the complaint to include a count to reestablish the lost note. The amended complaint also included a lost note affidavit, as well as a copy of the note (with the allonge indorsed in blank). The lost note affidavit stated that, as part of the search for the lost note, Wells Fargo "check[ed] with [its] current and/or prior attorney."

         At trial, Wells Fargo called as its sole witness a bank employee whose duties included reviewing and verifying business records. The employee, a loan verification analyst, testified that in 2010, before the filing of the foreclosure suit, Wells Fargo sent the original note to its former attorney. The witness stated that the note was lost at some point after it was sent to its former attorney.

         In explaining Wells Fargo's procedures for determining whether a note is lost, the witness testified that the bank would check all areas where the note could be, including with prior counsel, previous court files, and the bank's internal vault, before deeming the note lost. He testified that the bank followed the same routine practice in this case. The trial court then received a copy of the note into evidence, without objection.

         The borrowers' counsel objected to the reestablishment of a lost note, arguing that Wells Fargo could not prove that the note was indeed lost. The borrowers' counsel argued to the trial court that there was no direct evidence that Wells Fargo contacted its former attorney, who worked for a now defunct law firm. He then asked the court for an involuntary dismissal because Wells Fargo had failed to prove its case. The court agreed, and asked counsel if he was making the motion at that time. The borrowers' counsel replied: "I would. Well, they haven't concluded their case, so I will certainly wait for them, but I would move for an involuntary dismissal, Your Honor."

         The trial court allowed Wells Fargo to further question its witness, telling Wells Fargo's counsel: "You want to go through it again and prove it? I'll give you that chance. Go through it again." During the continued questioning, the witness again confirmed that Wells Fargo followed its routine procedure of contacting the former law firm to locate the lost note. After questioning the witness, Wells Fargo's counsel immediately began arguing that the evidence established the note was lost.

         The borrowers again moved for an involuntary dismissal, maintaining their arguments that the note could still be with the former law firm and that Wells Fargo could not offer any personal testimony that the former law firm was contacted.

         The trial court squarely asked: "Okay. Anything further?" The borrowers' counsel declined to present any further argument. The trial court then stated: "I don't think there's any more to discuss." Wells Fargo's counsel replied: "Not based on that, Your Honor, no." The trial court then granted the motion for involuntary dismissal.

         On appeal, Wells Fargo argues that reversal is required because the trial court granted an involuntary dismissal before the close of its case and because it submitted unrebutted routine evidence ...


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