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Vieira v. PennyMac Corp.

Florida Court of Appeals, Fourth District

March 21, 2018

ROBERTO D. VIEIRA a/k/a ROBERTO VIEIRA and SHAWN D. VIEIRA a/k/a SHAWN VIEIRA, Appellants,
v.
PENNYMAC CORP. and THE TIMBERS OF BOCA HOMEOWNERS ASSOCIATION, INC., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal 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.

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

          CONNER, J.

         Roberto 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.

         Background

         In 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.

         The lost note affidavit attached to the complaint stated, in part:

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.

         The 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.

         At trial, PennyMac called two witnesses; one a JP Morgan employee and the other a PennyMac employee. We summarize the testimony that is ...


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