WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE MASTR ASSET BACKED SECURITIES TRUST 2007-NCW MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-NCW, Appellant,
GRACE STEPHENSON AND TIMACUAN COMMUNITY SERVICES ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Jessica J.
Rosenberg, Cynthia L. Comras, and Jarrett E. Cooper, of
Robertson, Anschutz & Schneid, P.L., Boca Raton, for
Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for
Appellee, Grace Stephenson. No Appearance for Appellee,
Timacuan Community Services Association, Inc.
Fargo Bank, N.A., as Trustee for the MASTR Asset Backed
Securities Trust 2007-NCW Mortgage Pass-Through Certificates
Series 2007-NCW ("Wells Fargo"), appeals the order
dismissing its amended foreclosure complaint against Grace
Stephenson without leave to amend and the order denying its
motion for rehearing. On appeal, Wells Fargo argues that the
trial court erred in dismissing its action because it
sufficiently alleged its standing as the holder of the
blank-indorsed note. We agree and reverse.
2014, Wells Fargo filed its initial foreclosure complaint
against Stephenson and her husband, Gene (collectively,
"the Stephensons"). It alleged that it was the
holder of the operative note and mortgage via transfer and
that the Stephensons defaulted on payments since September
2011. It attached several documents in support, including: a
copy of the note Gene executed in February 2007 payable to
New Century Mortgage Corporation ("New Century"); a
copy of an undated, blank indorsement from New Century; a
certification of possession of the original note; and an
assignment of mortgage to "Wells Fargo Bank, N.A., as
Trustee for the CertificateHolders of MASTR Asset-Backed
Securities Trust 2007-NCW, Mortgage Pass Through
Certificates, Series 2007-NCW." The Stephensons moved to
dismiss the action based on the discrepancy between Wells
Fargo's name as presented in the complaint versus the
assignment of mortgage. The trial court granted the
Stephensons' motion and dismissed the complaint with
leave to amend.
Stephenson's agreement,  Wells Fargo filed its amended
foreclosure complaint in August 2017. It again alleged that
it was a holder and possessed the blank-indorsed note at
issue. It attached a copy of the note and the blank
indorsement, as well as a certification of possession of the
original note. It also attached a corrective assignment of
mortgage. Stephenson again moved to dismiss based upon the
discrepancy between Wells Fargo's name in the complaint
versus the mortgage assignment. Wells Fargo responded in
opposition, contending that it sufficiently alleged its
standing as the holder of the blank-indorsed note. The trial
court granted Stephenson's motion and dismissed the
amended complaint without leave to amend. It found that Wells
Fargo lacked standing based on the mortgage assignment, and
it believed the issue could not be cured.
Fargo timely moved for rehearing. It argued that the court
erred in granting Stephenson's motion to dismiss because
it should have taken the allegations regarding its status as
holder of the blank-indorsed note as true. It maintained that
any minor discrepancy in its name between the complaint and
mortgage assignment was not dispositive of its standing. The
court denied the motion, and Wells Fargo timely appealed.
operative complaint alleged that Wells Fargo, as a trustee,
held the blank-indorsed note and included a certification of
possession of the original note, as well as a copy of a blank
indorsement. Taken as true, such was sufficient to illustrate
standing as a holder to overcome Stephenson's motion to
dismiss. See Bonafide Props., LLC v. E-Trade Bank,
208 So.3d 1279, 1281 (Fla. 5th DCA 2017); Fox v.
Prof'l Wrecker Operators of Fla., Inc., 801 So.2d
175, 178 (Fla. 5th DCA 2001). The assignment of mortgage,
which Stephenson heavily relied upon below and on appeal, was
not relevant to this allegation, nor were the slight
variations in Wells Fargo's name. See Wilmington Sav.
Fund Soc'y, FSB, v. Louissaint, 212 So.3d 473,
475-46 (Fla. 5th DCA 2017); Bank of N.Y. Mellon Tr. Co.,
Nat'l Ass'n v. Ginsberg, 221 So.3d 1196, 1197
(Fla. 4th DCA 2017).
agree with our sister court that to prove standing, a
plaintiff is not required to identify or prove the trust on
whose behalf the plaintiff acts. Ginsberg, 221 So.3d
at 1197. The fact that the trust identified in the complaint
is somewhat different from the trust identified in the
mortgage assignment does not create a defect in standing as a
holder of the note that can be resolved on a motion to
GROSSHANS, J., and ROBERSON, E.C., ...