FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Lisa Davidson,
Bowin, of Bowin Law Group, Satellite Beach, for Appellants.
Shamir, David S. Ehrlich, and Nicole R. Topper, of Blank Rome
LLP, Fort Lauderdale, and Monika E. Siwiec, and Manuel S.
Hiraldo, of Blank Rome LLP, Boca Raton, for Appellee, Wells
Fargo Bank, N.A., As Trustee Under the Pooling and Servicing
Agreement Relating to Impac Secured Assets Corp, Mortgage
Pass Through Certificates, Series 2005-2.
A. Brainard, Scott C. Davis and Michael H. Casanover, of
Business Law Group, P.A., Tampa, for Appellee, Suntree Master
Homeowners Association, Inc.
appearance for other Appellee.
Melissa Madl appeal the final judgment of foreclosure entered
in favor of Appellee, Wells Fargo Bank, N.A., as Trustee
under the Pooling and Servicing Agreement Relating to Impac
Secured Assets Corp, Mortgage Pass-Through Certificates,
Series 2005-2. Appellants correctly assert that Wells Fargo
failed to prove that it had standing and that it gave
Appellants the required notice of default. Accordingly, we
reverse and remand for the trial court to enter an order of
involuntary dismissal. We also grant Appellants' motion
for appellate attorney's fees.
Madl executed a note and both Appellants executed a mortgage
in 2005 in favor of Impac Funding Corporation. In 2006, Impac
assigned the mortgage to Wells Fargo. Also in 2006, Wells
Fargo filed a foreclosure action against Appellants on the
subject note and mortgage, but it then voluntarily dismissed
that case in 2007. Following that dismissal, Deutsche Bank
National Trust filed a foreclosure action against Appellants
regarding the same note and mortgage; that case was
voluntarily dismissed in 2009.
Fargo initiated the instant foreclosure action in April 2009,
claiming in its complaint that it was the owner and holder of
the note and that it had complied with all conditions
precedent to foreclosing Appellants'
mortgage. The copy of the promissory note attached
to Wells Fargo's complaint was payable to Impac and there
were no indorsements or allonges attached. The trial court
denied Appellants' motion to dismiss the complaint based
on a lack of standing. In their answer, Appellants raised
lack of standing and the failure to comply with the notice
provisions of paragraph 22 of the mortgage, along with other
effort to establish standing, Wells Fargo moved into evidence
the purported original promissory note that contained an
undated blank indorsement allegedly signed by
Impac. Wells Fargo's witness, Mr. Handville,
an employee of Ocwen Loan Servicing, testified that he did
not know when the indorsement was made, and he agreed that
the copy of the promissory note attached to the complaint
lacked any indorsement. Wells Fargo also introduced into
evidence, over objection, an unsigned copy of a pooling and
servicing agreement ("PSA") in an effort to prove
that Appellants' loan was included in the trust it
oversaw. The PSA had no official seal, was not separately
authenticated, and had merely been copied from the Security
and Exchange Commission's website.
Handville also testified about whether proper notification of
default and acceleration had been given to Appellants. He
said that Ocwen was the current servicer of the mortgage but
that GMAC Mortgage had been the servicer at the time the
required default notice should have been sent. According to
Mr. Handville, from what he had been told, GMAC typically
sent relevant information to a third-party vendor who was
supposed to prepare and mail the default letters. He could
not testify that GMAC actually transmitted the default notice
data to the third-party vendor, that the third-party vendor
received the data, or that the third-party vendor actually
prepared or mailed the default notice to Appellants. He
assumed, based on his interpretation of GMAC's
computerized comment documents, that the notice had been
sent; however, he admitted they were in a format that was
unfamiliar to him. The trial court denied Appellants'
motion for involuntary dismissal as well as their
post-judgment motion for rehearing. The trial court also
entered judgment in favor of Wells Fargo.
it should be clear to all, it apparently bears repeating that
the party seeking to foreclose a mortgage must have standing
at the time the complaint is filed. See Rodriguez v.
Wells Fargo Bank, N.A., 178 So.3d 62, 63 (Fla. 4th DCA
2015). Where the plaintiff relies on an undated indorsement
to establish its standing, it must prove that the indorsement
was made prior to the filing of the complaint and that the
indorsed note was in the plaintiff's possession at the
time the suit was filed. See McLean v. JP Morgan Chase
Bank Nat'l Ass'n, 79 So.3d 170, 174 (Fla. 4th
DCA 2012). Commonly, plaintiffs prove this fact by attaching
a copy of the note bearing the undated indorsement to the
complaint. See Ortiz v. PNC Bank, Nat'l
Ass'n, 188 So.3d 923, 925 (Fla. 4th DCA 2016).
However, in this case, the copy of the note Wells Fargo
attached to its complaint lacked the indorsement found on the
original note admitted into evidence; therefore, the copy
does not prove standing at the time suit was filed. See
Friedle v. Bank of N.Y. Mellon, 226 So.3d 976, 978-79
(Fla. 4th DCA 2017). Another way to prove when an indorsement
was placed on a note is through testimony, but Wells
Fargo's witness admitted he had no knowledge of when that
indorsement was made. Furthermore, on cross-examination, Mr.
Handville testified that the documents he reviewed showed
that, from 2007 until April 2014, GMAC, Wells Fargo, and
their lawyers could not locate the original note. Five years
after the underlying suit was filed, Deutsche Bank presented
the note to Ocwen, with no explanation offered for where the
"original" note had been or when and how the blank
indorsement was added.
Fargo also tried to establish standing by offering a copy of
an unsigned PSA that supposedly included Appellants'
loan. It is difficult to understand how this unexecuted
document, even if properly authenticated, could establish
standing or that Appellants' loan was included in the
relevant trust. Wells Fargo failed to prove that this
document was admissible under the business records exception
because it was not created or originally maintained by Wells
Fargo or Ocwen, but instead was a copy of a printout obtained
from the SEC's website. See id. at 978. Thus,
Wells Fargo's reliance on Deutsche Bank National
Trust Co. v. Marciano, 190 So.3d 166 (Fla. 5th DCA
2016), and Bolous v. U.S. Bank National Ass'n,
201 So.3d 691 (Fla. 4th DCA 2016), is misplaced. The
plaintiffs in those cases properly proved that the relevant
PSAs specifically included the loans in question, which had