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DiGiovanni v. Deutsche Bank National Trust Co.

Florida Court of Appeals, Second District

April 5, 2017

LEONARDO N. DiGIOVANNI, Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY f/k/a BANKERS TRUST COMPANY OF CALIFORNIA, NATIONAL ASSOCIATION, AS TRUSTEE FOR VENDEE MORTGAGE TRUST 1999-3, UNKNOWN SPOUSE OF LEONARDO N. DIGIOVANNI; CITY OF CAPE CORAL, FLORIDA, A MUNICIPAL CORPORATION; UNKNOWN TENANT #1 n/k/a KIM MITCHELL; UNKNOWN TENANT #2 n/k/a CHARLIE MITCHELL; UNKNOWN TENANT #3; UNKNOWN TENANT #4; AND OTHER UNKNOWN PARTIES, INCLUDING THE UNKNOWN SPOUSE OF ANY TITLE HOLDER IN POSSESSION OF THE PROPERTY; AND, IF A NAMED DEFENDANT(S) IS DECEASED, THE SURVIVING SPOUSE, HEIRS, DEVISEES, GRANTEES, CREDITORS, AND ALL OTHER PARTIES CLAIMING BY, THROUGH, UNDER OR AGAINST THAT DEFENDANT(S); AND THE SEVERAL AND RESPECTIVE UNKNOWN ASSIGNS, SUCCESSORS IN INTEREST, TRUSTEES OR OTHER PERSONS CLAIMING BY, THROUGH, UNDER OR AGAINST ANY CORPORATION OR OTHER LEGAL ENTITY NAMED AS A DEFENDANT(S); and ALL CLAIMANTS, PERSONS OR PARTIES, NATURAL OR CORPORATE, OR WHOSE EXACT LEGAL STATUS IS UNKNOWN, CLAIMING UNDER ANY OF THE ABOVE NAMED OR DESCRIBED DEFENDANT(S), Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Lee County; Hugh E. Starnes, Senior Judge.

          Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.

          Mary J. Walter of Liebler, Gonzalez & Portuondo, Miami, for Appellee Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3.

          No appearance for remaining Appellees.

          KHOUZAM, Judge.

         Leonardo N. DiGiovanni appeals the final judgment of foreclosure entered against him and in favor of Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3. Because Deutsche Bank failed to show standing to foreclose, we reverse.

         On May 3, 2012, Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, National Association, as Trustee for Vendee Mortgage Trust 1999-3 filed a foreclosure complaint against DiGiovanni seeking to reestablish a lost note. In count one, the complaint alleged that plaintiff or its predecessor was in possession and was entitled to enforce the note when it was lost or destroyed. In count two, the complaint alleged that the note and mortgage had been executed by DiGiovanni on June 21, 1999, and he had failed to make his payments since August 1, 2009. Attached to the complaint were copies of the note and mortgage, showing that the original lender was U.S. Department of Veterans Affairs. Also attached was a copy of an assignment transferring the mortgage from U.S. Department of Veterans Affairs to Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3.

         At trial, a mortgage resolution associate from Bank of America, N.A., testified that Bank of America was the servicer of the mortgage. She stated that Bank of America had possession of the note on or about October 29, 1999, when it was transferred to former foreclosure counsel for a previous foreclosure case. The note was lost in transition back to Bank of America. A copy of the note was admitted into evidence. It bore a specific endorsement to Bankers Trust Company of California, N.A., as Trustee for Vendee Mortgage Trust 1999-3 and was dated October 28, 1999. A copy of the assignment transferring the mortgage to Bankers Trust was admitted, though Deutsche Bank noted that it was not relying on the assignment. A breach letter and payment history were also admitted. But none of these documents showed that Deutsche Bank was formerly Bankers Trust or that Deutsche Bank was the current trustee for Vendee Mortgage Trust 1999-3. Indeed, when the mortgage resolution associate from Bank of America was specifically asked if she had any document to illustrate that Deutsche Bank National Trust Company was formerly known as Bankers Trust Company of California, she admitted that she did not. DiGiovanni argued that without such a document, Deutsche Bank could not show standing to foreclose.

         After the defense rested, the judge stated that he needed to take a break to consider the standing issue: "I'm going to go up to my office where I can look on my computer and see what I can do." When the judge returned, he made clear that the evidence as presented was insufficient to establish Deutsche Bank's standing. However, he explained that during the break he had run a Google search and found Deutsche Bank's institutional history on the National Information Center's[1] website showing that Bankers Trust had been renamed Deutsche Bank in 2002:

[W]ell, there's no documentation, I think I have to rule in favor of the defendant because it's different entity. . . . [T]he plaintiff normally, of course, has submitted something through the Federal research that actually shows if there's been a change of name or something, and of course I didn't know it was merger, there was no evidence, and [defense counsel] made that clear from his calling [the mortgage resolution associate]. And-but I thought, do I need to consider, in the interest of justice, allowing the plaintiff, if there is something that is virtually public record, to ask me to take judicial notice if that's the only failing. And that's where I came down to, that's the only thing that I think failed in the plaintiff's proof and so I just thought, you know, if it really is that obvious, something like that, or that clear, I'll Google it. So I Google Bankers Trust Company of California and I printed out what came up, National Information Center, United States Federal Reserve System, and this is what usually comes up. And I've taken judicial notice in other cases when somebody's submitted something like that . . . . See, I put in Bankers Trust Company and this is what came up, institutional history for Deutsche Bank and what it shows . . . Bankers Trust Company of California was renamed Deutsche Bank National Trust Company. . . . I think that's the type of thing that I should take judicial notice of. Since that's something new, I'll give [defense counsel] a shot at anything he wants to say about that, but it's so obvious that I think I should take notice of it.

         DiGiovanni pointed out that Deutsche Bank had the burden of proof, that Deutsche Bank had not presented this document, and that it was improper for the court to do its own investigation. The court then asked Deutsche Bank, "Do you wish to reopen your case to admit this document?" Deutsche Bank did so, and the document was admitted. The judge clarified that he believed that even if the Deutsche Bank had not reopened the case, he could have taken judicial notice sua sponte

because it is so straightforward and black and white that it was a change of name that is in the repository of the government, Federal governmental agency whose task it is to keep track of all that and it is a very technical thing to say, well, they've said . . . we were formerly Bankers Trust Company and for their suit to fail because they didn't present that, I don't think would really be just.

         Judgment was entered in favor of Deutsche Bank. DiGiovanni moved for rehearing, again raising the objection to the court's independent investigation and arguing that the case should have been dismissed. The court held a hearing but ultimately denied rehearing, concluding that it was appropriate to take ...


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