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JPMorgan Chase Bank National Association v. Pierre

Florida Court of Appeals, Fourth District

April 5, 2017


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE13024666.

          Nancy M. Wallace, William P. Heller and Eric M. Levine of Akerman LLP, Tallahassee, Fort Lauderdale and West Palm Beach, for appellant.

          Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellees.

          Damoorgian, J.

         JPMorgan 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.

         In 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 the Note.

         Almost 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 worked.

         Through 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 servicer(s).

         In 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."

         During 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.

         At the 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, reasoning:

[JPMorgan] had issues with the Default Letter and I think there are inconsistences with the transfer and also with Pennymac Corp. as an ...

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