HAZEL N. PETERS a/k/a HAZEL N. JOHNSON; and UNKNOWN TENANT 1 n/k/a DAVE PETERS, Appellants,
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR BEAR STEARNS ASSET BACKED SECURITIES TRUST 2006-4, ASSET BACKED CERTIFICATES, SERIES 2006-4, and LEO JOHNSON, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; James H. Seals, Senior
P. Stopa of Stopa Law Firm, Tampa, for Appellant Hazel N.
Peters a/k/a Hazel N. Johnson.
Kristen M. Crescenti, Christopher C. O'Brien and Ronnie
J. Bitman of Pearson Bitman LLP, Maitland, for Appellee The
Bank of New York Mellon.
appearance for Appellee Leo Johnson.
N. Peters, a/k/a Hazel N. Johnson (Ms. Peters), challenges a
final judgment of foreclosure in favor of The Bank of New
York Mellon (the Bank) entered after a bench trial. Because
the Bank failed to prove its ownership of the lost note that
it attempted to reestablish and enforce, we reverse.
THE FACTS AND THE PROCEDURAL BACKGROUND
March 13, 1998, Ms. Peters and Leo Johnson executed a note in
favor of ContiMortgage Corporation as the Lender. The note
was secured by a standard residential mortgage on real
property in Lee County, Florida. The mortgage also named
ContiMortgage Corporation as the Lender.
January 28, 2013, the Bank filed the underlying action to
foreclose the mortgage and for the reestablishment of the
note, which the Bank alleged had been lost. The Bank's
complaint alleged September 18, 2008, as the date that the
note went into default. The Bank filed a lost note affidavit
dated on October 31, 2006, and executed on behalf of EMC
Mortgage Corporation (EMC), a prior holder of the mortgage.
In the affidavit, the affiant merely asserted that the note
"was lost and has not been paid, satisfied, assigned,
pledged, transferred or hypothecated in any way." The
affidavit did not provide any details regarding the date or
circumstances of the asserted loss of the note. A copy of the
note was attached to the affidavit. The copy of the note did
not reflect any indorsements or allonges. The Bank
subsequently filed another lost note affidavit executed on
behalf of Select Portfolio Servicing, Inc. (SPS), the current
servicer for the loan. The copy of the note attached to the
SPS affidavit was identical to the copy attached to the EMC
Peters filed an answer and affirmative defenses to the
complaint. In her answer, Ms. Peters denied the material
allegations of the complaint and asserted numerous
affirmative defenses. In pertinent part, Ms. Peters denied
that the Bank had standing to enforce the note and mortgage,
asserted that the Bank's action to reestablish the lost
note was barred by the applicable statute of limitations, and
claimed that the Bank had failed to comply with a condition
precedent to foreclosure because it had not notified the
borrower of the claimed assignment of the loan within thirty
days of the assignment in accordance with section 559.715,
Florida Statutes (2012).
lost note was payable to ContiMortgage Corporation; it had
not been indorsed in blank or payable to the order of the
Bank. At trial, the Bank sought to establish its ownership of
the lost note with a series of four assignments of mortgage.
The first assignment, dated April 8, 1998, was from
ContiMortgage Corporation to ContiWest Corporation. The
second assignment, dated April 7, 1998, was from ContiWest
Corporation to Manufacturers and Traders Trust Company.
Although the second assignment was dated one day
before the first one, it was recorded after
the recording of the first one. The third assignment, dated
June 28, 2010, was from Manufacturers and Traders Trust
Company to EMC. Each of the first three assignments expressly
assigned both the mortgage and the note that was secured by
fourth assignment, dated December 7, 2012, was from EMC to
the Bank. In pertinent part, the fourth assignment assigned
"all of Assignor's right, title and interest all
beneficial interest under a certain Mortgage, dated March 13,
1998, made and executed by Leo Johnson and Hazel N. Johnson
fka Hazel N. Peters to ContiMortgage Corporation . . .
." At trial, Ms. Peters argued that the
fourth assignment was insufficient to establish the
Bank's ownership of the lost note because it assigned
only the mortgage, not the note. The trial court ruled that
the fourth assignment was sufficient to assign the note as
well as the mortgage and rejected Ms. Peters' argument.
The trial court admitted the certified copies of the four
assignments into evidence over Ms. Peters' objection.
for the Bank conceded that the note and mortgage at issue had
been the subject of two prior foreclosure actions filed in
the Lee County Circuit Court. The first action was filed in
2001; the second was filed in 2004. Notably, both actions,
which were subsequently dismissed, included a count for the
reestablishment of a lost note. Based on the filing of the
prior actions and the first lost note affidavit executed in
2006, Ms. Peters argued that the Bank's action to
reestablish the lost note was barred because it had not been
brought within the bar of the ...