U.S. BANK NATIONAL ASSOCIATION, as trustee for the holders of the Terwin asset-backed securities series 2007-QHL1, Appellant,
TAMMY L. COOK and CHRISTOPHER COOK, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Cynthia Newton,
Taylor of DeLuca Law Group, PLLC, Fort Lauderdale, for
P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing),
L. Cook and Christopher Cook, pro se.
Bank appeals the circuit court's involuntary dismissal of
its foreclosure complaint against Tammy and Christopher Cook.
Because the bank provided sufficient evidence to support a
prima facie case for foreclosure, we reverse.
bank initiated this foreclosure action on December 13, 2013.
The bank alleged that Specialized Loan Servicing LLC (SLS)
serviced the loan as the bank's "duly appointed
Attorney in Fact as set out in the Power of Attorney,"
which the bank attached as an exhibit to the amended
complaint. At trial, the bank called an SLS representative to
testify and admitted into evidence two limited powers of
attorney between the bank and SLS; the original note and
mortgage; the 2008 assignment of the note and mortgage to the
bank; an October 31, 2013, bailee letter authorizing the
bank's attorney to hold the Cooks' original note and
mortgage; copies of a 2013 loan modification; loan payment
records; and the amount of debt owed. All of these documents
were admitted over the Cooks' objections.
the bank rested, the Cooks moved for involuntary dismissal.
The Cooks argued that the bank failed to prove an agency
relationship between itself and SLS and therefore failed to
show that it had constructive possession of the note at the
time it filed the amended complaint. The trial court granted
the motion for involuntary dismissal, finding that
"[t]he evidence presented is insufficient to establish
an agency relationship exists between the [bank] and
SLS." This was error. Because we conclude that the bank
admitted sufficient evidence that it constructively possessed
the note through its agent, SLS, when it filed its initial
complaint on December 13, 2013, we reverse.
review an order granting a motion for involuntary dismissal
at the close of a case under a de novo standard of
review." Deutsche Bank Nat'l Tr. Co. v.
Kummer, 195 So.3d 1173, 1175 (Fla. 2d DCA 2016).
"An involuntary dismissal or directed verdict is
properly entered only when the evidence considered in the
light most favorable to the [nonmoving] party fails to
establish a prima facie case on the [nonmoving] party's
claim." Wells Fargo Bank, N.A. v. Eisenberg,
220 So.3d 517, 522 (Fla. 4th DCA 2017) (emphasis omitted)
(quoting McCabe v. Hanley, 886 So.2d 1053, 1055
(Fla. 4th DCA 2004)). The trial court "can neither weigh
the evidence nor consider the credibility of witnesses"
in ruling on a motion for involuntary dismissal. Capital
Media, Inc. v. Haase, 639 So.2d 632, 633 (Fla. 2d DCA
1994); see also Tillman v. Baskin, 260 So.2d 509,
511 (Fla. 1972). And the appellate court will affirm an
involuntary dismissal "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.
Huber, 137 So.3d 562, 563-64 (Fla. 4th DCA 2014).
plaintiff who is not the original lender may establish
standing to foreclose a mortgage loan by submitting a note
with a blank or special [i]ndorsement, an assignment of the
note, or an affidavit otherwise proving the plaintiff's
status . . . ." Focht v. Wells Fargo Bank,
N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). It is
undisputed that the bank did not have direct possession of
the note. However, at trial it proceeded on a theory that SLS
possessed the note on its behalf at the time the bank filed
its foreclosure complaint. See Phan v. Deutsche Bank
Nat'l Tr. Co. ex rel. First Franklin Mortg. Loan Tr.
2006-FF11, 198 So.3d 744, 749 (Fla. 2d DCA 2016)
("[W]here an agent holds a mortgage note on behalf of
its principal, the principal has constructive possession of
the note and standing to file a complaint for
existence of an agency [relationship] may be shown by any
substantial evidence, either direct or circumstantial."
Id. (alteration in original) (quoting McCabe v
Howard, 281 So.2d 362, 363 (Fla. 2d DCA 1973)). "A
power of attorney creates the relationship of principal and
agent between the one who gives the power and the one who
holds it." Kotsch v. Kotsch, 608 So.2d 879, 880
(Fla. 2d DCA 1992). The limited powers of attorney admitted
by the bank at trial appointed SLS as attorney-in-fact for
the bank and granted it the authority to "demand, sue
for, recover, collect[, ] and receive each and every sum of
money, debt, account[, ] and interest (which now is, or
hereafter shall become due and payable) belonging to or
claimed" by the bank. Each included a schedule of
accounts to be serviced by SLS, specifically listing the 181
Terwin Micro 2007-QHL trust. The SLS representative testified
that the Cooks' note and mortgage were contained within
this trust, and her testimony was supported by the payment
history records and managed service agreement admitted into
evidence. She also testified that SLS had been servicing the
Cooks' loan since 2007 and had negotiated a loan
modification agreement on behalf of the bank in 2013. This
was prima facie evidence of an agency relationship between
SLS and the bank.
the bailee letters admitted at trial reflect that the
original note and mortgage were transferred from SLS to the
bank's attorney of record in October 2013, two months
before the attorney filed the initial foreclosure complaint.
Thus, there was sufficient evidence to show that the bank had
constructive possession of the note at the time it filed its
complaint. See U.S. Bank, Nat'l Ass'n v.
Angeloni, 199 So.3d 492, 493 (Fla. 4th DCA 2016)
("Possession of a note by a third party agent such as a
servicer or law firm, gives the 'owner' of the note
constructive possession sufficient to establish standing . .
. ."); see also Fed. Nat'l Mortg. Ass'n v.
McFadyen, 194 So.3d 418, 422-23 (Fla. 3d DCA 2016)
("While there is no evidence that Fannie Mae had direct
or actual possession of the note either after it was received
by Aurora, its servicing agent; when the original was sent to
attorney David Stern to file suit to enforce it; when the
servicing agreement was assumed by Seterus; or later when
this suit was filed, the uncontradicted evidence was that at
all times material herein, Fannie Mae was in constructive
possession of the note and thus had standing to file suit to
the plaintiff has presented a prima facie case and different
conclusions or inferences can be drawn from the evidence, the
trial judge should not grant a motion for involuntary
dismissal." Kummer, 195 So.3d at 1175 (quoting
Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA
1989)). Because the bank provided sufficient evidence to
support its prima facie case for foreclosure, ...