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Wells Fargo Delaware Trust Co., N.A v. Petrov

Florida Court of Appeals, Second District

October 31, 2017

WELLS FARGO DELAWARE TRUST COMPANY, N.A., as trustee for VERICREST OPPORTUNITY LOAN LOAN TRUST 201-NPL1, Appellant,
v.
ALEXEY PETROV; FIFTH THIRD BANK; AMSOUTH BANK; TOWNHOMES AT TURTLE CREEK ASSOCIATION, INC.; AMERICAN EXPRESS CENTURION BANK; RHONDA PETROV; and FLORIDA LIMITED INVESTMENT PROPERTIES, INC., Appellees.

         Appeal from the Circuit Court for Hillsborough County; Perry A. Little, Senior Judge.

          David W. Rodstein of Rodstein Law Group, P.A., Ft. Lauderdale; and Norman Rodney Holmes and Silver Deutch of Millennium Partners, Aventura, for Appellant.

          Uta S. Grove of Grove & Cintron, P.A., Largo; Starlett M. Massey of McCumber Daniels, Tampa; and Karen E. Maller of Powell, Carney, Maller, P.A., St. Petersburg, for Appellee Florida Limited Investment Properties, Inc.

          No appearance for remaining Appellees.

         BY ORDER OF THE COURT:

         Appellant Wells Fargo's Motion to Correct Opinion is stricken as untimely. On this court's own motion, the prior opinion dated October 6, 2017, is withdrawn and the attached opinion is issued in its place. The substituted opinion deletes a reference to a "tax deed" in the third paragraph of the opinion and replaces it with "certificate of title." No further motions for rehearing will be entertained.

          OPINION

          ROTHSTEIN-YOUAKIM, Judge.

         Wells Fargo Delaware Trust Company, N.A., as Trustee for Vericrest Opportunity Loan Trust 201-NPL1, appeals from an order involuntarily dismissing its foreclosure complaint after a bench trial.[1] Because the trial court erroneously concluded that Wells Fargo's servicer, Caliber Home Loans, f/k/a Vericrest Financial, [2]and its employee, Scott Logue, had prosecuted this action on Wells Fargo's behalf without proving that they had been authorized to do so, we reverse and remand for reinstatement of Wells Fargo's second amended complaint.

         THE PROCEEDINGS BELOW

         On June 2, 2004, Alexey Petrov executed the mortgage and note at issue in this case. On December 1, 2010, Petrov stopped making mortgage payments.

         In February 2012, Wells Fargo filed a foreclosure complaint. Petrov failed to defend, and the clerk entered a default on May 22, 2012. That same day, Wells Fargo moved for a final summary judgment of foreclosure and filed with the trial court the original mortgage and note. Subsequently, however, Wells Fargo discovered that a certificate of title for the property had been issued to Florida Limited Investment Properties, Inc. (FLIP), before Wells Fargo had initiated the foreclosure action, so Wells Fargo moved to amend the complaint to include FLIP as a defendant. The trial court granted the motion, and Wells Fargo filed an amended complaint and served FLIP. FLIP filed a motion to dismiss the amended complaint, which the court granted for reasons not pertinent to this appeal.

         In April 2014, Wells Fargo filed its second amended complaint, which FLIP unsuccessfully moved to dismiss. At the December 2015 trial, Wells Fargo, through Logue, entered into evidence the original note with allonges, the original mortgage, assignments of the mortgage, the notice of default, the loan payment history, and other exhibits. Logue testified as to the servicer's boarding process and its role in maintaining the mortgagee's loan records. In short, this was-or should have been-a run-of-the-mill foreclosure proceeding at which the plaintiff proved standing, its fulfillment of conditions precedent, the facts supporting the default, and the amounts due.

         The groundwork for the error requiring reversal, however, was laid when FLIP objected to the admission of the Limited Power of Attorney (LPOA) between Wells Fargo and Vericrest/Caliber. FLIP argued that the LPOA only authorized Vericrest/Caliber to "creat[e] . . . documents" and did not "provide[] for . . . testimony or the filing of foreclosures." The trial court overruled the evidentiary objection but directly questioned Logue on the issue, repeatedly asking whether Logue could point out in the document itself what provision gave Vericrest/Caliber "the authority to prosecute the foreclosure action."

         Post-trial, the trial court directed the parties to file written closing arguments. In FLIP's "Motion for Involuntary Dismissal, Closing Argument, and Memorandum of Law, " FLIP argued, in pertinent part, that the LPOA did not give Vericrest "the authority to hold the Note, or to enforce the Note or to foreclose the Mortgage, " to verify the complaint on behalf of Wells Fargo, to initiate suit on behalf of Wells Fargo, or to give testimony on behalf of Wells Fargo. Moreover, FLIP argued, Caliber lacked any authority at all under ...


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