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Hopson v. Deutsche Bank National Trust Co.

Florida Court of Appeals, Second District

August 28, 2019

JOHN W. HOPSON, Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Indenture Trustee for New Century Home Equity Loan Trust 2005-2, Appellee.

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

          Appeal from the Circuit Court for Pinellas County; John A. Schaefer, Judge.

          Robert E. Biasotti of Biasotti Law, St. Petersburg, for Appellant.

          Morgan L. Weinstein of Van Ness Law Firm, Deerfield Beach, for Appellee.

          ATKINSON, Judge.

         John W. Hopson appeals the trial court's order denying him attorney's fees pursuant to section 57.105(7), Florida Statutes (2018), in the foreclosure action brought against him by Deutsche Bank National Trust Company, as Indenture Trustee for New Century Home Equity Loan Trust 2005-2 (Deutsche Bank). Because Hopson could not establish that Deutsche Bank was a party to the contract that contained the attorney's fees provision, we affirm.

         On March 14, 2005, Hopson executed and delivered to Mortgage Approval Services, Inc. (MAS), the original lender, a note and mortgage, in the principal amount of $175, 000. Hopson defaulted on the note and mortgage by failing to make the payment due on September 1, 2006, and all payments thereafter. Deutsche Bank filed a foreclosure action against Hopson to foreclose the mortgage and for reestablishment of the lost note and mortgage, which Deutsche Bank alleged had been lost or destroyed after its acquisition of the note and mortgage. Attached to the complaint were copies of the mortgage and note, which contained no endorsements or allonges. Deutsche Bank alleged that MAS assigned the note and mortgage to Deutsche Bank in an Assignment of Mortgage (Assignment) dated January 1, 2007. A copy of the Assignment was attached to the complaint. The Assignment was executed by New Century Mortgage Corporation (New Century) as attorney-in-fact for MAS.

         In its third amended complaint, Deutsche Bank alleged that it "took assignment by a Mortgage Loan Purchase Agreement series 2005-2 dated as of April 22, 2005" and included the following attachments: a copy of a Mortgage Loan Purchase Agreement and a limited power of attorney between Deutsche Bank and Carrington Mortgage Services, LLC (Carrington), as successor servicer to New Century. Hopson filed a motion to dismiss, alleging that Deutsche Bank lacked standing because the record was clear from Deutsche Bank's "allegations and from the exhibits attached to the complaint that a person other than [Deutsche Bank] may be the true owner of the claim sued upon and that [Deutsche Bank] is not the real party in interest and is not shown to be authorized to maintain this foreclosure action." Hopson specifically contested the validity of the Assignment. The trial court denied Hopson's motion.

         At the ensuing bench trial, Deutsche Bank's sole witness was a default litigation and mediation supervisor for Carrington, who testified that Carrington purchased New Century after New Century went into bankruptcy. Various documents were admitted through that testimony, including the following: a limited power of attorney, in which Deutsche Bank appointed Carrington as successor servicer to New Century; the note made payable to MAS without any indorsements or allonges; a copy of the mortgage issued from Hopson to MAS; and a copy of the Assignment dated January 1, 2007, assigning the note and mortgage from New Century as attorney-in-fact for MAS to Deutsche Bank.

         Hopson moved for an involuntary dismissal, arguing that Deutsche Bank failed to prove standing at inception and at trial. Relying on Bonafide Properties, LLC v. E-Trade Bank, 208 So.3d 1279 (Fla. 5th DCA 2017), counsel for Hopson contended that Deutsche Bank's "assignment [was] insufficient" because there was no evidence that New Century was the attorney-in-fact for MAS: "If there was an endorsement on the lost Note, we'd have a different story. But all you have in order for them to establish their standing is they're relying on a fraudulent assignment of Mortgage."

         On June 30, 2017, the trial court entered a final judgment in favor of Hopson:

3. [Deutsche Bank] failed to introduce any testimony or evidence about New Century['s] . . . ability to assign the note and mortgage to [Deutsche Bank] and [MAS'] granting of a power of attorney.
4. The Court finds that [Deutsche Bank] failed to prove the elements of standing in this case as [Deutsche Bank] failed to explain the lack of endorsements or allonges on the lost note, and the power of attorney relationship of [New Century] as attorney in fact for [MAS] on the assignment of mortgage, pursuant to Bonafide Properties, LLC v. E-Trade Bank, 208 So.3d 1279, 1281 (Fla. 5th DCA 2017).

         The trial court awarded Hopson his reasonable attorney's fees and costs and reserved ...


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