final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen D. Ireland, Judge; L.T. Case No.
Erskine Ice of ICE Appellate, Royal Palm Beach, for
William L. Grimsley and N. Mark New, II of McGlinchey
Stafford, Jacksonville, for appellee.
challenges a final judgment of foreclosure, contending that
the Bank failed to prove standing. We reverse, agreeing that
the evidence was insufficient. Although a copy of the
promissory note secured by the mortgage was attached to the
complaint, it was not in the same condition as the original
filed with the court and accepted into evidence at the trial.
Because the appellee did not otherwise prove that the Bank
had possession of the note and was thus a holder at the time
of the filing of the complaint, we reverse.
standard of review in determining whether a party has
standing to bring an action is de novo. Boyd v. Wells
Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA
2014). To prove standing in a mortgage foreclosure case, the
plaintiff must prove its status as a holder of the note at
the time of the filing of the complaint as well as at trial.
See Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195
(Fla. 4th DCA 2012). In this case, the foreclosing bank's
witness could not testify that the Bank had possession of the
note prior to filing the complaint. The Bank conceded that it
presented no testimony that its present servicer or its prior
servicer had possession of the note at the inception of the
foreclosure action. It relied on the fact that a copy of the
promissory note with the blank endorsement included was
attached to the complaint when filed. Although a copy of the
note with a blank endorsement was attached, it was not in the
same condition as the original note introduced in evidence at
trial. In Ortiz v. PNC Bank, National Assoc., 188
So.3d 923 (Fla. 4th DCA 2016), we said:
[I]f the Bank later files with the court the original note
in the same condition as the copy attached to the
complaint, then we agree that the combination of such
evidence is sufficient to establish that the Bank had actual
possession of the note at the time the complaint was filed
and, therefore, had standing to bring the foreclosure action,
absent any testimony or evidence to the contrary.
Id. at 925 (emphasis added). Here, the note attached
to the complaint had no loan numbers on it, yet the original
note filed with the court has loan numbers. Because the
original note was not in the same condition as the
copy attached to the complaint, the evidentiary inference
that we indulged in Ortiz, that the Bank had actual
possession of the note at the filing of the complaint, does
not arise. Although the lack of the numbers may seem a minor
difference, Ortiz infers possession at the time of
filing suit where the copy attached to the complaint and the
original are identical, as the copy must have been
made from the original note at the time that the
complaint was filed, without evidence to the contrary. Where
the copy differs from the original, the copy could have been
made at a significantly earlier time and does not carry the
same inference of possession at the filing of the complaint.
Bank cites to the Pooling and Service Agreement
("PSA") as providing other evidence of standing.
That document purports to show the transfer of the mortgage
loan to the Bank as trustee. Appellant objected to the
admission of this evidence, which the court allowed on the
ground that it was self-authenticating under section 90.902,
Florida Statutes (2016). While it was certified by the
Securities and Exchange Commission ("SEC") as being
filed with that agency and thus was self- authenticating,
there is a difference between authentication and
admissibility. Charles Ehrhardt explains the difference:
Documents must be authenticated before they are admissible
evidence . . . . Even after a document is authenticated, it
will not be admitted if another exclusionary rule is
applicable. For example, when a document is hearsay, it is
inadmissible even if it has been properly authenticated.
Ehrhardt, Florida Evidence § 902.1, (2016 Edition).
Here, the PSA, which is unsigned, purportedly establishes a
trust of pooled mortgages, but this particular mortgage was
not referenced in the documents filed with the SEC. Appellant
objected that the document was hearsay, as none of the
exceptions to the hearsay rule were established. The Bank did
not present sufficient evidence to admit this unsigned
document as a business record, as under cross examination,
the Bank's witness admitted that the PSA was not in the
records of the servicer but came directly from the SEC.
Therefore, it could not be admitted as a business record of
the witness testified that a mortgage loan schedule, which
listed the subject mortgage, was part of the business
records, that schedule showed only that the subject mortgage
loan was supposed to be one of the loans subject to the PSA.
Moreover, the Mortgage Loan Schedule ("MLS") does
not purport to show that the actual loan was physically
transferred. And it is clear from the testimony that the
witness had no knowledge of the workings of the PSA or MLS.
even if the PSA were admissible, it does not assist in
proving standing. Section 1.01 of the PSA provides that the
Bank as Trustee acknowledges receipt and declares that it
holds the mortgage loans included in the pool. Yet that
declaration is conditioned on the Trustee reviewing each
mortgage file to certify that the necessary documents,
including notes, are contained in those files and issuing an
Interim Certification. The Bank did not admit into evidence
any certification with respect to this mortgage that the
Trustee had checked the file and that all the loan ...