WELLS FARGO DELAWARE TRUST COMPANY, N.A., as trustee for VERICREST OPPORTUNITY LOAN LOAN TRUST 201-NPL1, Appellant,
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.
from the Circuit Court for Hillsborough County; Perry A.
Little, Senior Judge.
W. Rodstein of Rodstein Law Group, P.A., Ft. Lauderdale; and
Norman Rodney Holmes and Silver Deutch of Millennium
Partners, Aventura, for Appellant.
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.
appearance for remaining Appellees.
ORDER OF THE COURT:
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dated October 6, 2017, is withdrawn and the attached opinion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
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. Because the trial court erroneously
concluded that Wells Fargo's servicer, Caliber Home
Loans, f/k/a Vericrest Financial, 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.
2, 2004, Alexey Petrov executed the mortgage and note at
issue in this case. On December 1, 2010, Petrov stopped
making mortgage payments.
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.
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.
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
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 ...