KELI N. JOHNSON and THOMAS E. JOHNSON, Appellants,
DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, as Trustee RALI 2007-QS1, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Keith P. Spoto,
P. Stopa of Stopa Law Firm, Tampa, for Appellants.
William L. Grimsley, Kimberly Held Israel, and N. Mark New,
II, of McGlinchey Stafford, Jacksonville, for Appellee.
and Thomas Johnson appeal the circuit court's entry of a
final summary judgment against them in a residential mortgage
foreclosure case brought by Deutsche Bank National Trust
Company Americas, as Trustee RALI 2007-QS1 (RALI). They raise
five arguments on appeal. We find merit within the
fourth-that RALI failed to conclusively establish its
standing to enforce the Johnsons' promissory note-and
reverse the summary judgment on that basis.
Johnsons borrowed $236, 000, apparently in connection with a
home improvement construction loan, which was memorialized by
a promissory note in that amount dated April 28, 2006. The
Johnsons' note was originally payable to National City
Mortgage, a division of National City Bank of Indiana, and
secured by a mortgage on the Johnsons' property in Polk
County, Florida. The promissory note contained three
endorsements, the last of which made the note payable to
"Deutsche Bank Trust Company Americas as Trustee, "
with no further identifying information of which trust this
entity was acting on behalf of.
the Johnsons allegedly defaulted on the note in 2011, RALI
filed the underlying complaint. It later amended its
complaint twice, so that in its final, operative iteration,
RALI alleged it had standing to enforce the Johnsons'
note as a holder of the note. The Johnsons generally denied
RALI's allegations in their answer and asserted several
affirmative defenses, including lack of standing on the part
of RALI to enforce the note. RALI eventually filed the
original note, which contained endorsements appearing to
match those on the copy attached to its
case proceeded with itinerant discovery and motion practice,
and on July 8, 2016, RALI filed a motion for summary
judgment. In support of its motion, it also filed an
affidavit signed by Sarah Greggerson, an employee of PNC
Mortgage, an entity that purported to be servicing the
Johnsons' loan. It appears from the record that RALI
relied upon PNC's status as its servicer as a basis to
establish RALI's status as a holder of the Johnsons'
note (Ms. Greggerson's affidavit was the only one filed
in support of RALI's motion for summary judgment). In our
view, that was insufficient evidence of RALI's standing
for purposes of summary judgment in this case.
review a summary judgment under a de novo standard of review.
Herendeen v. Mandelbaum, 232 So.3d 487, 489 (Fla. 2d
DCA 2017) (citing Volusia County v. Aberdeen at
Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000)).
Summary judgment is proper only where the moving party shows
conclusively that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law.
When the nonmoving party has alleged affirmative defenses,
the moving party must conclusively refute the factual
bases for the defenses or establish that they are
legally insufficient. "The burden of proving the
existence of genuine issues of material fact does not shift
to the opposing party until the moving party has met its
burden of proof."
Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71
So.3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations
omitted) (quoting Deutsch v. Global Fin. Servs.,
LLC, 976 So.2d 680, 682 (Fla. 2d DCA 2008)). "If
the record reflects the existence of any genuine issue of
material fact or the possibility of any issue, or if the
record raises even the slightest doubt that an issue might
exist, summary judgment is improper." Atria
Grp., LLC v. One Progress Plaza, II, LLC, 170 So.3d
884, 886 (Fla. 2d DCA 2015) (quoting Holland v.
Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991)).
court has held that in residential mortgage foreclosure
cases, the plaintiff bears the burden of proving its standing
at the time of trial and at the time it filed its complaint
if the issue of standing is contested. See Corrigan v.
Bank of Am., N.A., 189 So.3d 187, 189 (Fla. 2d DCA 2016)
(en banc); see also Winchel v. PennyMac Corp., 222
So.3d 639, 642-43 (Fla. 2d DCA 2017) (noting the "legal
oddity" that standing has become in residential
foreclosure cases and summarizing, "[o]nce put at issue
by a defendant, then, standing becomes a part of the prima
facie case that a foreclosure plaintiff must prove in order
to secure a judgment"). The summary judgment evidence
regarding RALI's standing-challenged, as it was, by the
Johnsons' affirmative defense-fell short of what was
required for a summary adjudication.
Greggerson's affidavit stated only that "Plaintiff
has owned and held the Note since prior to the filing of the
Complaint in this action." The problem with that
assertion, however, is that Ms. Greggerson was not affiliated
in any way with the plaintiff, RALI. The limited facts stated
in her affidavit failed to address how she derived this
knowledge about RALI's connection to the Johnsons'
note or how RALI became an owner or holder of the
Johnsons' note; and there was no claim within her
affidavit that PNC was holding the Johnsons' note on
behalf of RALI. See, e.g., Peters v. Bank of N.Y.
Mellon, 227 So.3d 175, 180 (Fla. 2d DCA 2017) (finding
testimony of "case manager" employed by
servicer-who took over servicing after the filing of the
lawsuit- was insufficient to establish ownership of the lost
note because "Ms. Stevens had no personal knowledge
about the Bank's claim to have acquired ownership of the
note in 2006. Moreover, Ms. Stevens's testimony in this
regard was not supported by the limited documentary evidence
about the loan that was available. Because Ms. Stevens's
testimony was not based on personal knowledge and was not
supported by any documentation, we conclude that the
testimony was insufficient to establish the Bank's
ownership of the lost note."); Rosa v. Deutsche Bank
Nat'l Tr. Co., 191 So.3d 987, 988-89 (Fla. 2d DCA
2016) (holding that "the record in this case does not
establish that Deutsche Bank had standing to foreclose at the
time it filed its complaint" because its sole witness,
an employee of its servicer, Wells Fargo, "was unable to
provide any testimony as to Deutsche Bank's acquisition
of the note" and remarking that "[t]he only
testimony as to possession of the note suggests that Wells
Fargo, not Deutsche Bank, was the last entity to have
possession of the note prior to the filing of the
complaint"); Stoltz v. Aurora Loan Servs., LLC,
194 So.3d 1097, 1098 (Fla. 2d DCA 2016) (finding second
servicer's representative's testimony was
insufficient to prove first servicer's standing at time
of inception of suit because "[t]hat testimony
established at most that the first servicer was in fact
servicing the mortgage when it filed suit, not that the first
servicer held the note when it filed suit"); Jaffer
v. Chase Home Fin. LLC, 92 So.3d 240, 242 (Fla. 4th DCA
2012) ("Under [Florida Rule of Civil Procedure
1.510(e)], affidavits must be based on personal knowledge,
set forth facts which would be admissible in evidence, and
show 'the affiant is competent to testify to the matters
stated therein.' " (quoting Coleman v.
Grandma's Place, Inc., 63 So.3d 929, 932 (Fla. 4th
DCA 2011))). And in this case, the documents attached to Ms.
Greggerson's affidavit did not dispel the question of
this note's ownership or who was the note's holder
such that there was not "the slightest doubt that an
issue might exist" concerning RALI's standing.
See Atria Grp., 170 So.3d at 886. Indeed, on this
record, it is not even clear that PNC had the underlying
authority to act as a servicer for RALI or to hold the
Johnsons' note on RALI's behalf. Cf. Rosa,
191 So.3d at 988 n.2 (noting that foreclosing plaintiff,
Deutsche Bank, did not argue constructive possession of its
note by its servicer, Wells Fargo, or that Wells Fargo was
acting as Deutsche Bank's agent that was authorized to
hold the note on Deutsche Bank's behalf (citing Phan
v. Deutsche Bank ...