RICHARD M. RIGBY, Appellant,
BANK OF NEW YORK MELLON, f/k/a The Bank of New York, as Trustee for the Certificateholders of CWMBS, Inc., Alternative Loan Trust 2006-8T1, Mortgage Pass-Through Certificates, Series 2006-7, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Bay County. James Fensom,
Douglas L. Smith of Burke, Blue, Hutchison, Walters &
Smith, P.A., Panama City; Michael R. Reiter, Lynn Haven, for
P. Stopa of Stopa Law Firm, Tampa, for Amicus Curiae Mark P.
Stopa, Esq. and Stopa Law Firm, in support of Appellant.
J. Walter and Tricia J. Duthiers of Liebler Gonzalez &
Portuondo, Miami, for Appellee.
Marissa M. Yaker, Robert K. Bowen and Timothy D. Padgett of
Padgett Law Group, Tallahassee; Robert R. Edwards and Ari
Miller of Choice Legal Group, P.A., Ft. Lauderdale; David
Rosenberg of Robertson, Anschutz & Schneid, PL, Boca
Raton; Andrea R. Tromberg and Jason Joseph of Gladstone Law
Group, P.A., Boca Raton; Michelle Garcia Gilbert and Jennifer
Lima-Smith of Gilbert Garcia Group, P.A., Tampa, for Amicus
Curiae American Legal and Financial Network, in support of
Ann Wozniak, Joseph E. Foster and Sara A. Brubaker of Akerman
LLP, Orlando; Richard H. Martin of Akerman LLP, Tampa, for
Amicus Curiae The Florida Bankers Association, in support of
Kenneth B. Bell and John W. Little, III of Gunster, West Palm
Beach; Robert W. Goldman of Goldman Felcoski & Stone,
P.A., Naples, for Amicus Curiae The Real Property Probate and
Trust Law Section of The Florida Bar.
Ashby v. Wells Fargo Bank, NA, 221 So.3d 1217 (Fla
1st DCA 2017)
THOMAS, CJ, and OSTERHAUS, J, CONCUR
BILBREY, J., Dissenting.
Rigby challenges the final judgment of foreclosure in favor
of Bank of New York Mellon, f/k/a the Bank of New York, as
Trustee for the Certificate Holders CWMBS, Inc., Alternative
Loan Trust 2006-8T1 Mortgage Pass-Through Certificates Series
2006-7 (BONY), on grounds that certain evidence at trial was
improperly admitted and that the evidence was insufficient to
prove that BONY had standing to enforce the note on the date
the original foreclosure complaint was filed. Having reviewed
the documents and testimony presented at trial and in the
record, I believe that evidence was improperly admitted, and
without that improperly admitted evidence, there was
insufficient proof of BONY's standing. Therefore, I would
reverse the final judgment and remand for a new trial. Since
the majority affirms the decision of the trial court, I
filed the original complaint for foreclosure on May 14, 2010,
alleging that Mr. Rigby's mortgage was in default due to
his failure to pay the amount due September 1, 2009, and
amounts due thereafter. Paragraph 8 of the complaint alleged
that BONY "owns and holds the note and mortgage."
Attached to the complaint was a copy of a promissory note
obligating Mr. Rigby to repay a loan from lender BankTrust
and a copy of the mortgage securing the note. The signature
page of the copy of the note included an undated special
indorsement from an officer of BankTrust to "the order
of Countrywide Bank, N.A." See §
673.2051(1), Fla. Stat. (stating that a special indorsement
may only be negotiated by the person identified). In ...