final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No.
M. Wallace, William P. Heller and Eric M. Levine of Akerman
LLP, Tallahassee, Fort Lauderdale and West Palm Beach, for
Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield
Beach, for appellees.
Chase Bank National Association appeals the court's entry
of final judgment in favor of Alfred and Anicile Jean Pierre
("Borrowers") following a bench trial. We reverse
for entry of judgment of foreclosure in favor of JPMorgan
because the judgment on appeal is contrary to the applicable
law and the evidence in this case.
November of 2013, JPMorgan filed a one count residential
mortgage foreclosure suit against Borrowers, attaching a copy
of the Note and Mortgage to the complaint. The Note was
executed on May 18, 2005 and reflected that the original
lender was Washington Mutual Bank, FA. The copy of the Note
attached to the complaint also bore a blank indorsement. On
the same day it filed the complaint, JPMorgan's counsel
filed a Certificate of Physical Possession of Original Note
in which it certified that it was, as JPMorgan's
representative in the lawsuit, in physical possession of the
original Note indorsed in blank as of October 9, 2013. This
October date is significant because it is before the date the
complaint was filed. JPMorgan later amended its complaint to
clarify that it was "in physical possession of the Note
[i]ndorsed in blank" and was, therefore, the holder of
three years later, the matter proceeded to a bench trial. At
the trial, JPMorgan introduced Daniela Lopez as a witness.
Ms. Lopez worked as a case manager for PennyMac Loan
Services, LLC which serviced Borrowers' loan on behalf of
JPMorgan, and was extensively trained as to both the original
lender, Washington Mutual Bank's, and JPMorgan's
record keeping policies and procedures. Ms. Lopez testified
JPMorgan acquired all of the original lender's,
Washington Mutual Bank, assets through the FDIC and upon
doing so, kept all of the same record keeping policies and
procedures as Washington Mutual Bank. Additionally, she
testified that the loan's servicer, PennyMac, went
through a loan boarding process whereby it reviewed, vetted,
and uploaded all of the existing loan documents into its
imaging system. Ms. Lopez explained in detail how the process
Ms. Lopez, JPMorgan introduced the Note and Mortgage, which
were identical to those attached to the complaint, into
evidence. A loan payment history was also introduced based on
the boarded and verified records of all of the loan
addition to the foregoing, JPMorgan also sought to introduce
the breach letter sent to Borrowers by "Washington
Mutual Home Loans." Ms. Lopez explained that
"Washington Mutual Home Loans" was under the
umbrella of Washington Mutual Bank. She further explained
that during her training, she learned that once a loan was in
default, it was the regular business practice of Washington
Mutual Bank to have its collections department create a
default letter, print and mail out the letter to the
borrower, and then upload the letter into its imaging system.
She also testified that PennyMac's boarding department
verified the default letter's accuracy and that it was
actually mailed by checking with the prior servicer and/or
cross-referencing the collection and servicing notes. Despite
this extensive testimony, the court precluded JPMorgan from
introducing the breach letter into evidence on Borrowers'
hearsay objection, ruling that JPMorgan did not submit
sufficient evidence regarding the record keeping practices of
"Washington Mutual Home Loans."
its cross-examination of the witness, Borrowers' counsel
asked when the blank indorsement was placed on the Note. Ms.
Lopez responded that she did not know, but speculated that it
was probably around the time the Note was transferred from
Washington Mutual Bank to JPMorgan. Ms. Lopez also testified
on cross that PennyMac Corp. was the owner of the subject
mortgage which was transferred via an assignment. She further
testified that PennyMac Corp. was the owner of the Note.
close of JP Morgan's case, both parties rested.
Borrowers' counsel argued that judgment should be entered
in their favor because: 1) absent the breach letter, JPMorgan
did not prove it complied with the pre-suit notice conditions
outlined in the mortgage, and 2) JPMorgan did not prove it
had standing to enforce the Note since its witness testified
that a different entity owned the Note. JPMorgan countered
that there was testimonial evidence establishing that a
breach letter was sent and received, and asserted that
ownership of the Note was a non-issue since it was pursuing
the suit based on its status of holder of the Note indorsed
in blank. The court entered judgment in favor of Borrowers,
[JPMorgan] had issues with the Default Letter and I think
there are inconsistences with the transfer and also with
Pennymac Corp. as an ...