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Russell v. Bac Home Loans Servicing, LP

Florida Court of Appeals, Fourth District

February 28, 2018

LESLINE RUSSELL, Appellant,
v.
BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING LP, Appellee.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE10021416.

          Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.

          Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for appellee.

         ON MOTION FOR REHEARING

          Levine, J.

         We deny appellee's motion for rehearing, but withdraw our previously issued opinion and substitute the following in its place.

         Appellant appeals a final judgment of foreclosure following summary judgment. Appellant argues that a genuine issue of material fact existed as to standing at the inception of the action because the endorsement on the note attached to the complaint was different than the endorsements on the original note filed with the court. We agree that a genuine issue of material fact existed and therefore we reverse.

          BAC Home Loans Servicing[1] filed a complaint for mortgage foreclosure against appellant. A copy of the note attached to the complaint contained an undated endorsement in blank by Q Lending, the lender named in the note. A copy of the note attached to the amended complaint contained an undated specific endorsement by Q Lending to Taylor, Bean & Whitaker Mortgage Corp. as well as an undated endorsement in blank by Taylor, Bean & Whitaker.

         Appellant filed an answer and affirmative defenses, raising lack of standing and pointing out the discrepancy in the endorsements.

         Carrington Mortgage Services, LLC, was substituted as party plaintiff and moved for summary judgment. In support of its motion, Carrington submitted an affidavit from Bank of America's assistant vice president stating that Bank of America had physical possession of the note endorsed in blank by Taylor, Bean & Whitaker as of May 19, 2010, the date the foreclosure action was filed. A screenshot accompanying the affidavit showed that Bank of America received the note on September 26, 2009. A second screenshot purported to show that the version of the note with two endorsements was scanned into Bank of America's system on December 18, 2009.

         The trial court granted summary judgment and entered a final judgment in favor of Carrington.

         Whether a party has standing to bring an action is reviewed de novo. Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA 2014). An order granting summary judgment is also reviewed de novo. Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006).

         "[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought." Id. at 479-80. "The burden is initially on the movant. Only where the movant tenders competent evidence in support of his motion does the burden shift to the other party to come forward with opposing evidence." Id. at 480.

          "[S]ummary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law." Id. If the evidence is conflicting, permits different reasonable inferences, or tends to prove the issues, it should be submitted to the trier of fact. Darwiche v. Bank of N.Y. Mellon, 185 So.3d 1261, 1262 (Fla. 4th DCA 2016). "If the ...


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