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Wells Fargo Bank, N.A. v. Cook

Florida Court of Appeals, Second District

July 26, 2019

WELLS FARGO BANK, N.A. as Trustee for the Certificate Holders of Banc of America Mortgage 2007-1 Trust, Mortgage Pass-Through Certificates, Series 2007-1, Appellant,
v.
RANDOLPH V. COOK; DEBORAH COOK; CONNERTON COMMUNITY COUNCIL, INC.; and BANK OF AMERICA, N.A., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Pasco County; Gregory G. Groger, Judge.

          Monica L. Haddad Forbes, Sara F. Holladay-Tobias, Emily Y. Rottmann, and Brittney Lauren Difato of McGuireWoods LLP, Jacksonville, for Appellant.

          Mark P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing), for Appellees Randolph V. Cook and Deborah Cook.

          No appearance for remaining Appellees.

          BLACK, JUDGE.

         Wells Fargo Bank, N.A., as Trustee for the Certificate Holders of Banc of America Mortgage 2007-1 Trust, Mortgage Pass-Through Certificates, Series 2007-1, challenges the trial court's final order dismissing its foreclosure lawsuit against Randolph Cook and Deborah Cook at the close of Wells Fargo's case-in-chief. Wells Fargo contends-and we agree-that the trial court erred in granting the Cooks' motion for involuntary dismissal. Thus, we reverse the order of dismissal and remand for further proceedings.

         In April 2010, Wells Fargo filed its complaint for foreclosure against the Cooks. In its complaint, Wells Fargo alleged that the Cooks had executed a note and mortgage in September 2006 in favor of Wells Fargo's predecessor in interest; copies of the note and mortgage in favor of Bank of America, N.A., were attached to the complaint. Wells Fargo also alleged that it was entitled to bring the foreclosure action, and a copy of the February 27, 2007, assignment of mortgage, which also assigned the note, was attached to the complaint.

         During the course of litigation, and after the denial of the Cooks' motion to dismiss based on Wells Fargo's alleged lack of standing and failure to comply with the default notice requirements of paragraph 22 of the mortgage, the Cooks filed an answer and affirmative defenses. The affirmative defenses included, as relevant to the resolution of this appeal, Wells Fargo's lack of standing.

         Prior to trial Wells Fargo filed the original note and mortgage with the court. The original note bears a special indorsement from Bank of America to Wells Fargo.[1] However, the indorsement is not dated, and it does not appear on the copy of the note attached to Wells Fargo's complaint.[2]

         In September 2016, after filing the original note and mortgage, Wells Fargo filed a memorandum of law in response to the Cooks' affirmative defenses. In that memorandum, Wells Fargo alleged:

Plaintiff has proper standing to bring the instant action. Plaintiff was in possession of the original Note at the time of filing its complaint. Further, the original Note has a special indorsement to Plaintiff. These facts make Plaintiff the proper holder and give it the right to enforce the Note and Mortgage. . . . Being the holder of a negotiable instrument is all that is necessary for a party to have standing to enforce it.

         On August 23, 2017, more than a year after Wells Fargo filed the original note and mortgage and almost a year following its memorandum contending that it was entitled to bring the foreclosure action as the holder of the note, a nonjury trial was held.

         At trial, Wells Fargo asserted that it would prove its standing as the holder of the note. To do so, Wells Fargo presented the testimony of a litigation resolution analyst employed by Nationstar Mortgage, LLC, the then-current servicer of the note. The witness was previously employed by Bank of America and testified regarding Bank of America's business practices, including securitization and onboarding documents. In addition to this witness's testimony, the original note, mortgage, and assignment of mortgage and note were introduced into evidence. In order to prove its compliance with the default notice ...


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