THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee for The Certificateholders CWALT, Inc., Alternative Loan Trust 2006-18CB, Mortgage Pass-Through Certificates, Series 2006-18CB, Appellant,
HOA RESCUE FUND, LLC, as Trustee under the 12122 Fox Bloom Avenue Trust Dated 2/21/2012; HENRY BARAHONA; YANIRA LAGOS; SOUTH BAY LAKES HOMEOWNERS ASSOCIATION, INC.; and BANK OF AMERICA, N.A., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Perry A.
Little and Wayne Timmerman, Senior Judges.
M. Wallace of Akerman LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman
LLP, West Palm Beach, for Appellant.
E. Biasotti of Biasotti Law, St. Petersburg, for Appellee HOA
Rescue Fund, LLC.
appearance for remaining Appellees.
Bank of New York Mellon f/k/a The Bank of New York as Trustee
for the Certifcateholders CWALT, Inc., Alternative Loan Trust
2006-18CB, Mortgage Pass-Through Certificates, Series
2006-18CB (the Bank), challenges the involuntary dismissal of
its foreclosure action. We reverse and remand for further
23, 2009, the Bank filed its notice of lis pendens and
foreclosure complaint, naming the mortgagors and the South
Bay Lakes Homeowners Association as defendants. A default was
entered against the mortgagors. In January 2012, while the
Bank's foreclosure action was pending, HOA Rescue Fund,
LLC, as Trustee under the 12122 Fox Bloom Avenue Trust dated
2/12/2012, purchased the property at the foreclosure sale
resulting from South Bay Lakes Homeowners Association's
lien foreclosure action. Importantly, South Bay Lakes'
lien was recorded in December 2009, six months after the
recordation of the Bank's lis pendens.
HOA Rescue moved to intervene in the Bank's foreclosure
action. Over the Bank's objection, HOA Rescue's
motion was granted. HOA Rescue then filed an answer and
affirmative defenses, raising the Bank's lack of standing
as a defense.
nonjury trial was held in February 2017; only the Bank and
HOA Rescue appeared. The Bank noted that HOA Rescue was a
third-party purchaser and would therefore be
"limited" in what it could object to during trial.
The court was asked to take judicial notice of the court
file, which it did. Additionally, prior to calling its only
witness, the Bank sought to introduce into evidence the
original note and mortgage at issue, as well as the
assignment of the mortgage, two certified limited powers of
attorney, and certified copies of the pooling and servicing
agreement (PSA) and mortgage loan schedule for the subject
mortgage. Over objection, the court admitted all of the
documents. The note bears three indorsements: the
first is from Greenpoint Mortgage Funding, Inc., the original
lender, to Countrywide Bank, N.A; the second is from
Countrywide Bank, N.A., to Countrywide Home Loans, Inc.; and
the third is a blank indorsement from Countrywide Home Loans,
Inc. The assignment of mortgage, dated July 15, 2009, assigns
the note and mortgage from Countrywide Home Loans, Inc., to
the Bank, as Trustee, and provides an effective date of May
4, 2009. The PSA was executed on May 1, 2006, with a closing
date of May 30, 2006, by and between Countrywide Home Loans,
Inc., and the Bank, as Trustee. The PSA identifies mortgage
pass-through certificates series 2006-18CB to include the
mortgage at issue.
the introduction into evidence of these documents, the Bank
called one witness, a litigation foreclosure specialist for
the loan servicer. The witness testified that the PSA
identifies the loan in question by loan number, city,
property location, purchase amount, and several other things
which all "match." She also testified that the PSA
"shows, on the title page, that this involves
Countrywide Home Loans, which is one [i]ndorsement on the
note and . . . speaks for itself, " as to the timing of
all evidence had been presented, HOA Rescue moved for an
involuntary dismissal based on the Bank's failure to
establish its standing at the inception of the action. The
court granted the motion and dismissed the foreclosure action
"without prejudice, " stating that the Bank could
Bank now seeks reversal of the dismissal, arguing both that
HOA Rescue was improperly permitted to intervene in the
action and participate in trial and that the Bank
sufficiently established standing and a prima facie case for
court has previously held, while it is preferable for the
trial court to enter a final judgment at the conclusion of a
nonjury trial, an order granting a motion for involuntary
dismissal in such instances is an appealable final order.
See Ventures Tr. 2013-I-H-R v. Asset Acquisitions &