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Rigby v. Bank of New York Mellon

Florida Court of Appeals, First District

September 18, 2017

RICHARD M. RIGBY, Appellant,
v.
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.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Bay County. James Fensom, Judge.

          Douglas L. Smith of Burke, Blue, Hutchison, Walters & Smith, P.A., Panama City; Michael R. Reiter, Lynn Haven, for Appellant.

          Mark P. Stopa of Stopa Law Firm, Tampa, for Amicus Curiae Mark P. Stopa, Esq. and Stopa Law Firm, in support of Appellant.

          Mary 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 Appellee.

          Carrie 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 Appellee.

          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.

          PER CURIAM.

         AFFIRMED. Ashby v. Wells Fargo Bank, NA, 221 So.3d 1217 (Fla 1st DCA 2017)

          BL THOMAS, CJ, and OSTERHAUS, J, CONCUR

          BILBREY, J., Dissenting.

         Richard 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 respectfully dissent.

         BONY 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 ยง 673.2051(1), Fla. Stat. (stating that a special indorsement may only be negotiated by the person identified). In ...


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