final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County No.
14-1350, Jorge E. Cueto, Judge.
Marinosci Law Group, P.C. and Donna Evertz (Fort Lauderdale),
M. Rosen (Fort Lauderdale), for appellees.
ROTHENBERG, C.J., and SALTER and LUCK, JJ.
Bank of New York Mellon ("BNYM") appeals a final
order of involuntary dismissal in favor of
defendants/borrowers Samuel Beaufort and Audrey
Horne-Beaufort (the "Borrowers") in this
residential mortgage foreclosure case. At the close of a
non-jury trial, the circuit court dismissed the complaint
based on BNYM's "failure to prove standing as of the
time the case was filed." We reverse and remand.
and Procedural History
September 2013, as BNYM prepared to commence the foreclosure
action in circuit court, an assistant vice president for Bank
of America, N.A. ("BANA"), signed the possession
certificate required by section 702.015(4), Florida Statutes
(2013), and Florida Rule of Civil Procedure Form 1.944(a).
The officer certified that BANA was BNYM's loan servicer
and attorney in fact, and that BNYM was in possession of the
original promissory note through BANA, "which possesses
the note on behalf of [BNYM]." The verified complaint
was filed in January 2014.
of the promissory note in the principal amount of $228,
000.00 (executed January 19, 2007) and companion mortgage
were attached to the verified complaint. The copy of the note
indicated that it was originally issued to Countrywide Home
Loans, Inc., and had been endorsed in blank. After the denial
of their motion to dismiss the complaint, the Borrowers filed
an answer and affirmative defenses. The first affirmative
defense, captioned "Standing, " alleged that BNYM
was not "1) the holder of the note, 2) a nonholder in
possession who has the rights of a holder, or 3) a person not
in possession who is entitled to enforce the instrument
pursuant to Florida Statute §673.3091 or Florida Statute
§673.4181(4), at the time the lawsuit was filed,
therefore [BNYM] does not have standing to bring this
case proceeded to non-jury trial in August 2016. BNYM
presented a single witness, Ms. Braithwaite. Ms. Braithwaite
testified that she worked for "Ditech, " the
servicing entity for the note and mortgage at issue in the
foreclosure suit. She identified a power of attorney between
Ditech and BNYM authorizing Ditech to act on behalf of BNYM,
"including foreclosure, " and the power of attorney
was admitted into evidence.
Braithwaite testified that she had reviewed the business
records pertaining to the loan, including copies of the
promissory note, the mortgage, the payment history, the
notice of defaults, the assignments of mortgage, and
"the overall servicing file." Counsel for the
Borrowers stipulated to the admission of the note and
mortgage into evidence. After Ms. Braithwaite identified the
default notice, proof of delivery, and payment history, and
testified that these were business records maintained in the
ordinary course of Ditech's business, counsel for the
Borrowers interposed various objections, which were
overruled, and then agreed to address those objections during
cross-examination rather than a voir dire. As to the payment
history, Ms. Braithwaite also testified that the payment
records were made "at or near the time of occurrence by
someone with knowledge, " and that the payment history
reflected "the same amount that's alleged in the
complaint as due and owing." She testified that the
amount due and sought in damages as of the date of trial was
further cross-examination by counsel for the Borrowers, Ms.
Braithwaite testified that she started working with Ditech
(known previously as "Green Tree Servicing") in
June 2014, and Ditech started servicing the loan in December
2013. She testified that she worked remotely (in South
Florida) but out of the Jacksonville, Florida, office of
Braithwaite admitted that, although she had access to
"input notes" into the payment history, she did not
personally receive payments or input the information into the
system. She also testified that data from the prior servicer
was incorporated into Ditech's records through the
"boarding" process. Ms. Braithwaite testified that
"boarding" involves not just transferring data from
one loan servicer to another, but also includes "the
process of vetting that data to make sure it's accurate
and reliable before it is then incorporated into the new
servicer's business records." During the extended
cross examination, she described the process by which a
composite of the loan servicing and information technology
departments work with a prior servicer, review "the
policies and procedures of the prior servicer to ensure that
they're in conformity with the industry standards"
and also in conformity with the acquiring servicer's
policies and procedures. Once those steps have been
completed, "the transfer of data starts to occur. Once
we receive the information from the prior servicer, it's
loaded into our test environment. From the test environment,
it's reviewed for accuracy, reliability, the accounts are
balanced to make sure the proper methodology is being ...