I’ve been screaming it forever in trial courts, and finally the appellate courts are picking up on the argument.
IT’S NOT ENOUGH FOR ANY OLD PLAINTIFF TO COME IN TOWN AND ASSERT IT HAS THE RIGHT TO THROW A HOMEOWNER INTO THE STREET.
THEY’VE GOT TO PROVE IT THROUGH EVIDENCE.
I recently had a gut wrenching loss in a foreclosure case, where this very subject was placed at issue, but I lost at trial. It’s clear now that we should not have lost. Of course we should not have lost….the Plaintiff should have been forced to prove up their alleged right to foreclose…but they did not. And now, we’ve got this opinion which comes as a real gut punch to me…..
I wanted to get a fresh perspective on this case to make sure I was not blinded by my own facts, so I asked my friend Mark Stopa to have a look who into the case. He filed a rehearing on this case, and really drafted a great piece of work. (He claims he’s the best foreclosure defense attorney in Pinellas County….and I may even be inclined to agree…)
Read his brief here…rehearing
MR. WEIDNER: We’re all familiar with
6 the number of cases that are on there –
7 Riggs, Harvey, Taylor versus Deutsche Bank.
8 It is an important distinction to be made
9 whether it’s an owner that’s in court
10 pleading as an owner or whether in this
11 case they’re pleading the status of
12 servicer.
13 This plaintiff has come into your
14 courtroom asserting they’re the servicer
15 that asserts that they’re an agent-ship for
16 someone else. They haven’t disclosed who
17 the principal is. They’ve given you zero
18 evidence that they have any authority to be
19 here on behalf of the principal.
MR. WEIDNER: Issue two. The
15 plaintiff has failed to introduce any
16 evidence whatsoever that either one of the
17 witnesses that they have called have any
18 relationship to the note or mortgage in
19 question.
20 They have, in fact, said, both
21 witnesses, we are the servicer but they
22 have not introduced a single piece of
23 evidence which gives them the authority to
24 be here in front of the Court. There are a
25 number of cases that deal with this, but
the fact of the matter is that under MERS
2 versus Azize, a long time ago out of this
3 very district, there’s a genuine issue of
4 material fact as to who owns the note and
5 who has the standing to foreclose, and
6 that’s what we’re talking about here.
7 There’s another party that owns the
8 note and mortgage at issue in this case.
9 Look at the way they pled it both in their
10 original complaint and in the amended
11 complaint. They asserted they either own
12 or hold or are servicing the loan. In
13 deposition they testified that we are
14 servicing the loan. So they have admitted
15 that they do not own the note or mortgage,
16 that they’re merely servicing.
17 And the fact of the matter is that
18 they have to provide some evidence of their
19 relationship to the principal that —
20 because they’re in the court acting as an
21 agent for a principal. If you look at both
22 of their complaints, there — but I just
23 want to set the amended complaint. Let’s
24 focus on that one.
25 They’re acting as the agent from an undisclosed principal
I’ve been asking
2 from the beginning: Give me some proof,
3 give me some authorization,
4 interrogatories, discovery, deposition, in
5 the request for production, request for
6 admissions. They refused to provide
7 anything.
8 The case law which stands for
9 proposition that the party seeking
10 foreclosure must present evidence that it
11 owns the note and mortgage, Lizio versus
12 McCullom 36th So.3rd 927, that’s out the
13 4th in 2010. Verizzo, that’s out of the
14 2nd DCA, V-E-R-I-Z-Z-O, versus Bank of New
15 York 28 So.3d 976. There’s a genuine issue
16 of fact as to whether Bank of New York owns
17 and holds the note and has standing to
18 foreclose the mortgage in question.
19 To grant the judgment of foreclosure
20 in favor of plaintiff, the trial court
21 would have to find, among other things,
22 that the plaintiff owned the mortgage and
23 had performed all conditions precedent if
24 anything. That’s Dykes versus Trustbank
25 567 So.2nd 958. That’s out of the 2nd 990.
So that’s my argument regarding
2 providing to the Court some evidence that
3 you have any relationship to the note and
4 mortgage in question. They have not done
5 that in this case, Your Honor. We’re
6 entitled to directed verdict.
7 Number three, the third issue, both
8 the witnesses that they presented testified
9 that they are here acting as servicers.
10 Because they are acting as servicers, they
11 do not come under the holder provisions of
12 the Uniform Commercial Code. Under 673.301
13 it doesn’t say that a person may be
14 entitled to enforce the instrument, either
15 they’re not or alike; however, if they’re
16 holding it, they only get the rights that
17 the transfer had any instrument. That’s
18 Florida Statute 673.2031, subsection 2.
19 It goes on further to state that if
20 a transferor — and we’ll start with the
21 originator. American Brokers Conduit was
22 the originator on here. They’re the name
23 that’s on there. There’s testimony that
24 the first witness, American Home Mortgage
25 Servicing, was servicing that on behalfof — was servicing. So presumably
2 something was transferred from the
3 originator, American Brokers Conduit, but
4 it was not the whole note, it was just,
5 arguably, the right to service it. But
6 they admitted they don’t own it, they’re
7 servicing it.
8 The statute asserts if a transferor
9 purported to transfer less than the entire
10 instrument, negotiation of the instrument
11 does not occur. The transferee has no
12 right under this chapter, has only the
13 rights of the partial assignee. That’s
14 Florida Statute 673.2031, subsection 4.
15 That’s what has occurred in this
16 case. The note was transferred for
17 potentially but only the rights. They have
18 not asserted that they own it.
19 Again, back to this issue, the
20 American Home Mortgage Servicing, Inc.
21 representative asserted they’re just the
22 servicer. They don’t own the note. This
23 is not a legally operative word,
24 “servicer.” It’s not like a personal
25 representative or a trustee or anything
the signature of Danielle Sterling to prove
20 their case in chief. Specifically, they’re
21 asserting that that endorsement on the note
22 that they have filed gives them the
23 standing, the authority, to pursue this
24 action.
25 I filed back in 2010, as part of my
Hearing Before Judge Williams February 15, 2012
1 affirmative defenses, a question regarding
2 the authenticity and voracity of that
3 signature. It’s asserted as Florida
4 Statute 673.3081. It asserts that when the
5 party desires to challenge the authenticity
6 of a signature, he shall do so by specific
7 negative averment, as I have done. That is
8 a burden shifting statute. Once I have
9 done so, the burden then shifts to opposing
10 party and they, then, are required to come
11 forth with some evidence that asserts that
12 matter.
READ THE WHOLE FRIGGIN TRANSCRIPT HERE!
125519 HEARING 021512.full
But now read the new case…..
In the mortgage foreclosure context, ” standing is broader than justactual ownership of the beneficial interest in the note.” Mortgage Elec.
Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007).
” The Florida real party in interest rule, Fla. R. Civ. P. 1.210(a), permits
an action to be prosecuted in the name of someone other than, but
acting for, the real party in interest.” Id. (quoting Kumar, 462 So. 2d at
1183). ” Thus, where a plaintiff is either the real party in interest or is
maintaining the action on behalf of the real party in interest, its action
cannot be terminated on the ground that it lacks standing.” Kumar, 462
So. 2d at 1183. See also BAC Funding Consortium Inc. ISAOA/ATIMA v.
Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010) (” The proper party
with standing to foreclose a note and/or mortgage is the holder of the
note and mortgage or the holder’s representative.”).
In securitization cases, a servicer may b e considered a party in
interest to commence legal action as long as the trustee joins or
ratifies its action. In re Rosenberg, 414 B.R. 826, 842 (Bankr. S.D. Fla.
2009) (emphasis added). In CWCapital Asset Management, LLC v.
Chicago Properties, LLC, 610 F.3d 497 (7th Cir. 2010), the Seventh
Circuit found that CW, as a special servicer to a loan, had standing to
bring an action in its own name against a mortgagor and landlord for
money paid by a tenant in settlement of a suit for unpaid rent. Id. at
499-500. Significantly, however, in opposition to the defendant’s motion
for judgment on the pleadings (based on CW’s lack of standing), CW filed
an affidavit of the trustee, which was not contradicted, ratifying the
servicer’s (CW’S) commencement of the lawsuit. Id. at 502 (emphasis
added). Additionally, the pooling and servicing agreement was placed in
evidence as additional evidence that CW’s principal granted CW authority
to enforce the debt instruments that CW neither owned nor held. Id. at
501.
In Juega v. Davidson, 8 So. 3d 488 (Fla. 3d DCA 2009), relied on by
the trial court, the Third District reversed an order of dismissal for lack
of standing, finding that because the plaintiff was an agent who had been
granted full authority to act for the real party in interest, there was no
violation of rule 1.210(a). Id. at 489. However, in Juega, there was
evidence in the trial court that the agent/plaintiff had been granted full
authority to act on the real party in interest’s behalf: The real party in
interest filed an affidavit in opposition to the motion to dismiss for lack of
standing, averring that Juega was pursuing the litigation for the real
party in interest’s benefit and ratifying all actions taken by Juega since
the inception of the lawsuit. Id. at 489. Finding the affidavit filed by the
real party in interest to be indistinguishable from the affidavit filed by the
principal in Kumar, the Third District held that ” the facts stated in [the
affidavit] establish that the agent, Juega, has standing.” Id. at 490
(emphasis added).
Here, the caption of the verified complaint states that the underlying
action is brought by CW ” solely in its capacity as special servicer on
behalf of U.S. Bank, N.A.” In the complaint, CW alleges, and verifies as
true, that it ” has been and is duly authorized by the Trust to prosecute
this action as agent and special servicer for the Trust.” However, CW did
not file any evidence, affidavits or other documents, supporting its
allegation that it was authorized to prosecute the action on behalf of the
trust, as was done in Kumar, Juega and Chicago Properties. Although
CW’s complaint is verified, it is verified by the ” SVP” for CW ““ not by the
real party in interest, the trust. CW relies on nothing more than its own
allegations and affidavit to support its argument that it has standing to
sue on behalf of the trust. This is insufficient evidence to prove that it is
authorized to sue on the trust’s behalf.
