CITIBANK, N.A., as Trustee for WAMU SERIES 2007-HE2 TRUST, Appellant,
TANGERINE J. MANNING, CORINTHIAN CONDOMINIUM ASSOCIATION, INC., HILL YORK CORPORATION f/k/a HILL YORK BROWARD, INC., JOHN ABELL CORPORATION, JPMORGAN CHASE BANK, N.A., as Successor to WAMU, RED OAKS SHUTTER, INC. a/k/a RED OAK SHUTTERS, INC., and UNITED STATES OF AMERICA, Appellees.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barry J. Stone, Senior
Judge; L.T. Case No. CACE 10020198(28).
Aaron Daniel, Elliot B. Kula and William D. Mueller of Kula
& Associates, P.A., Miami, for appellant.
Farrow of Farrow Law, P.A., Davie, for appellee Tangerine J.
N.A., as Trustee for WAMU Series 2007-HE2 Trust ("the
Bank"), appeals the trial court's order granting
final judgment in favor of Tangerine Manning
("Borrower") following a bench trial based on the
Bank's failure to comply with conditions precedent.
Borrower cross-appeals that same final judgment, arguing that
affirmance is required regardless of the Bank's
compliance with conditions precedent due to lack of standing.
We reverse the final judgment in favor of Borrower and remand
for entry of a final judgment in favor of the Bank.
of 2010, the Bank, in its capacity as trustee, filed a one
count verified mortgage foreclosure complaint against
Borrower. The complaint alleged that the Bank had the right
to enforce the note and mortgage; that Borrower defaulted on
the note; and that all conditions precedent to the filing of
the foreclosure action had been performed or had occurred.
Although the Bank did not attach a copy of the note to its
complaint, it did attach a copy of the mortgage listing
Washington Mutual Bank as the original lender. The Bank later
amended the complaint and attached a note bearing an undated,
blank indorsement from the original lender. Borrower denied
all of the material allegations of the Bank's and raised
several affirmative defenses, including lack of standing and
failure to comply with the mortgage's notice
matter ultimately proceeded to a bench trial where the Bank
presented its case through the testimony of a single witness.
The witness worked as a research officer for JPMorgan Chase
Bank, N.A. ("JPMorgan") which serviced
Borrower's loan on behalf of the Bank. The witness was
extensively trained as to JPMorgan's record keeping
policies and procedures. Through its witness, the Bank
introduced the original note indorsed in blank, and the
witness testified that the blank indorsement was placed on
the note sometime prior to September of 2008. In other words,
the note was indorsed in blank prior to the filing of the
Bank's initial complaint in 2010.
how the Bank became the holder of the note, the witness
outlined the following series of transactions. On April 1,
2007, the original lender transferred certain loans into the
"WAMU Series 2007-HE2 Trust." The pooling and
servicing agreement ("PSA") listed the original
lender as the "Seller and Servicer" and the Bank as
the "Trustee." The accompanying mortgage loan
schedule identified Borrower's loan as one of the loans
maintained in the trust. In September 2008, JPMorgan acquired
all of the original lender's assets through the FDIC as
evidenced by a purchase and assumption agreement. Section 3.1
of that purchase and assumption agreement, titled
"Assets Purchased by Assuming Bank, " provided that
"the Assuming Bank specifically purchases all mortgage
servicing rights and obligations of the Failed Bank."
Then, on March 1, 2010, JPMorgan officially assigned
Borrower's mortgage "[t]ogether with the note"
to the Bank. Ultimately, the witness testified that JPMorgan,
as servicer of the loan, was the entity that physically held
the original note for the Bank when the initial complaint was
filed. Through the witness, the Bank introduced the PSA and
the accompanying mortgage loan schedule, the purchase
assumption agreement, and the assignment of mortgage.
addition to the foregoing, the Bank also sought to introduce
the breach letter sent to Borrower by "Chase Home
Finance LLC." In order to lay the foundation for the
admission of the breach letter, the witness testified as
follows with regard to his personal knowledge of how the
servicer, JPMorgan, creates and mails breach letters:
I have been to the breach letter department in Jacksonville,
Florida where we had an in-class training on the red flag
reports that . . . the system generates when a loan is known
to go into default. Then the quality team in the breach
department reviews that red flag report on a daily basis to
confirm that the loan is actually in default and needing a
Once that has been confirmed through the quality control
measure, then the letter is generated and it is sent . . .
[f]irst class mail.
breach letter, dated February 4, 2010 and addressed to the
mortgaged property, was thereafter entered into evidence. The
witness then confirmed that the breach letter "went
out." The witness further explained that the entity that
mailed the breach letter, Chase Home Finance LLC, was a
wholly-owned subsidiary of JPMorgan. In fact, at the time the
letter was mailed, the witness explained that he was
technically employed by Chase Home Finance LLC. The witness
further explained that in May of 2011, JPMorgan and Chase
Home Loan LLC officially merged, however the systems and
procedures remained the same:
By May of 2011, when the merger happened, . . . I was a short
sale negotiator where I would get approval for short sales
that would happen, and my job function on April 29 of 2011