final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Peter M. Weinstein, Judge; L.T. Case No.
Michael K. Winston and Dean A. Morande of Carlton Fields
Jorden Burt, P.A., West Palm Beach, for appellant.
C. Botsford of Bruce Botsford, P.A., Fort Lauderdale, for
Appellees Bryan Ayers and Mindy Ayers.
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.
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
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.
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.
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."
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.
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.
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
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