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,
RANDOLPH V. COOK; DEBORAH COOK; CONNERTON COMMUNITY COUNCIL, INC.; and BANK OF AMERICA, N.A., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Gregory G. Groger,
L. Haddad Forbes, Sara F. Holladay-Tobias, Emily Y. Rottmann,
and Brittney Lauren Difato of McGuireWoods LLP, Jacksonville,
P. Stopa of Stopa Law Firm, Tampa (withdrew after briefing),
for Appellees Randolph V. Cook and Deborah Cook.
appearance for remaining Appellees.
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.
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.
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.
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. However, the indorsement is
not dated, and it does not appear on the copy of the note
attached to Wells Fargo's complaint.
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
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.
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
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 ...