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Bank of New York Mellon v. Burgiel

Florida Court of Appeals, Fifth District

May 25, 2018

BANK OF NEW YORK MELLON F/K/A BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2007-OH1 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-OH1, Appellant,
v.
JULIAN BURGIEL, EGRET'S LANDING AT LAKE MARY HOMEOWNERS ASSOCIATION, INC. AND BOCA STEL, LLC, Appellees. .

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Seminole County, Jessica J. Recksiedler, Judge.

          Jennifer Lima-Smith and Tara M. McDonald, of Gilbert Garcia Group, P.A., Tampa, for Appellant.

          Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Boca Stel, LLC.

         No Appearance for Other Appellees.

          ORFINGER, JUDGE.

         In this residential foreclosure case, Bank of New York Mellon, f/k/a Bank of New York, as Trustee for the Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-OH1 Mortgage Pass-Through Certificates, Series 2007-OH1 ("Bank") appeals a final judgment of involuntary dismissal entered in favor of appellee Boca Stel, LLC for lack of standing.[1] We reverse and remand.

         We review de novo a trial court's ruling on a motion for involuntary dismissal. Wilmington Sav. Fund Soc'y, FSB v. Louissaint, 212 So.3d 473, 475 (Fla. 5th DCA 2017). When reviewing the grant of an involuntary dismissal, we "view the evidence and all inferences of fact in a light most favorable to the nonmoving party, " and affirm "only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party." Deutsche Bank Nat'l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). We similarly review de novo whether a party has standing to bring the foreclosure action. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011); Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So.3d 1110, 1115 (Fla. 5th DCA 2015).

         In any mortgage foreclosure proceeding, a party seeking foreclosure must demonstrate that it has standing to foreclose. E.g., Gorel v. Bank of N.Y. Mellon, 165 So.3d 44, 45-46 (Fla. 5th DCA 2015); McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). A foreclosure plaintiff must have standing both at the inception of the foreclosure proceeding as well as at the time of final judgment. Bowmar v. SunTrust Mortg., Inc., 188 So.3d 986, 988 (Fla. 5th DCA 2016) (citing Pennington v. Ocwen Loan Servicing, LLC, 151 So.3d 52, 53 (Fla. 1st DCA 2014)). To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce under section 673.3091 or section 673.4181 (4), Florida Statutes. § 673.3011, Fla. Stat. (2014). A holder is defined as, inter alia, "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Id § 671.201 (21)(a).

         In this case, Bank's complaint alleged that it acquired the loan and possessed both legal and beneficial interest in the note and mortgage prior to filing the complaint. This language notwithstanding, attached to the complaint was a copy of the note with a blank indorsement, making it payable to the bearer. There is no dispute that the original note entered into evidence at trial was identical to the copy attached to the complaint. This was sufficient evidence to show that Bank had standing both at the inception of the foreclosure proceeding as well as at the time of final judgment; Boca Stel presented no evidence to the contrary.[2]

         The combination of the copy of the note attached to the complaint and the later-filed original sufficed to establish Bank's standing to foreclose.[3] Louissaint, 212 So.3d at 476; see Wells Fargo Bank, N.A. v. Ousley, 212 So.3d 1056, 1058 (Fla. 1st DCA 2016) ("A copy of a note with a blank endorsement attached to the complaint, with the original filed at trial, is enough to establish standing for the party that filed the complaint."). Thus, the trial court erroneously dismissed Bank's case for lack of standing. Louissaint, 212 So.3d at 476; see Bank of N.Y. Mellon v. Heath, 219 So.3d 104, 106 (Fla. 4th DCA 2017) ("Here, Bank established standing because the original note and blank-endorsed allonge was properly authenticated and introduced into evidence at trial, which was identical to the copy of the note and blank-endorsed allonge attached to the complaint.").

         We reverse the final judgment of involuntary dismissal and remand for further proceedings.

         REVERSED and REMANDED.

          PALMER and ...


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