ROBERTO D. VIEIRA a/k/a ROBERTO VIEIRA and SHAWN D. VIEIRA a/k/a SHAWN VIEIRA, Appellants,
PENNYMAC CORP. and THE TIMBERS OF BOCA HOMEOWNERS ASSOCIATION, INC., Appellees.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Susan R. Lubitz, Senior Judge; L.T. Case
No. 50-2015-CA-001150 AW.
Kendrick Almaguer, Thomas Eross, Jr., and Kyle M. Costello of
The Ticktin Law Group, PLLC, Deerfield Beach, for appellants.
W. Wallace of Akerman LLP, Tallahassee, and William P. Heller
and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for
appellee PennyMac Corp.
D. Vieira and Shawn D. Vieira ("the Borrowers")
appeal the final judgment of foreclosure in favor of PennyMac
Corp ("PennyMac") asserting the trial court erred
by (1) determining PennyMac had standing to enforce a lost
note, and (2) rejecting their attempt to amend pleadings to
conform to the evidence. Because we agree with the
Borrowers' first contention, we do not address the second
contention. We agree that PennyMac failed to prove at trial
that the initial plaintiff had standing to enforce the note.
We reverse the final judgment and remand for the trial court
to enter judgment in favor of the Borrowers.
January 2015, JP Morgan Chase Bank, National Association
("JP Morgan") filed the initial complaint in this
case, seeking to foreclose on a note and mortgage given by
the Borrowers to Chase Bank USA, N.A. ("Chase
Bank"), the original lender. The complaint also sought
to reestablish the lost note secured by the mortgage. JP
Morgan asserted that although the note was lost, it was
entitled to enforce the instrument pursuant to section
673.3091, Florida Statutes (2017). Attached to the complaint
was a copy of the note and mortgage. The complaint alleged in
part that "Plaintiff will establish the terms and
conditions of the subject note in addition to its right to
enforce. A lost note affidavit is attached hereto as Exhibit
'A.'" The body of the three-page complaint made
no reference to Chase Bank.
lost note affidavit attached to the complaint stated, in
A copy of the original note and, if applicable, allonge(s)
is/are attached hereto as Exhibit A.
The copy does not display endorsements.
(emphasis added). Exhibit A attached to the lost note
affidavit included a copy of the note, but no copy of an
allonge was attached.
Borrowers eventually filed an answer, asserting that JPMorgan
lacked standing and failed to fulfill conditions precedent.
Subsequently, JP Morgan moved to substitute PennyMac as
plaintiff and to change the case style, alleging that JP
Morgan assigned the mortgage to PennyMac after the suit was
filed, attaching a copy of the recorded assignment. The
assignment only transferred the mortgage and not the note. An
order was entered substituting PennyMac as the plaintiff.
trial, PennyMac called two witnesses; one a JP Morgan
employee and the other a PennyMac employee. We summarize the
testimony that is ...