Opinion
Case No. 2D19-3998
02-05-2021
U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Appellant, v. Alexandrina H. DICK; Unknown Spouse of Alexandrina H. Dick; Wells Fargo Bank, N.A., successor by merger with Wachovia Bank, N.A.; Unknown Tenant #1; and Unknown Tenant #2, Appellees.
Shannon L. Troutman of Albertelli Law, Tampa, for Appellant. Gabriel R. Strine of Strine Legal Services, PLLC, Odessa, for Appellee Alexandrina H. Dick. No appearance for remaining Appellees.
Shannon L. Troutman of Albertelli Law, Tampa, for Appellant.
Gabriel R. Strine of Strine Legal Services, PLLC, Odessa, for Appellee Alexandrina H. Dick.
No appearance for remaining Appellees.
ROTHSTEIN-YOUAKIM, Judge.
On this appeal of the order granting Alexandrina Dick's motion for involuntary dismissal of its foreclosure action for lack of standing, U.S. Bank Trust, N.A., as trustee for LSF9 Master Participation Trust (the Bank) argues, among other things, that the evidence established its standing both at inception and at trial. We agree and reverse.
We have jurisdiction. See Bank of N.Y. Mellon for Certificateholders CWALT, Inc. v. HOA Rescue Fund, LLC, 249 So. 3d 731, 733 (Fla. 2d DCA 2018) ("As this court has previously held, while it is preferable for the trial court to enter a final judgment at the conclusion of a nonjury trial, an order granting a motion for involuntary dismissal in such instances is an appealable final order." (citing Ventures Tr. 2013–I–H–R v. Asset Acquisitions & Holdings Tr., 202 So. 3d 939, 940 n.1 (Fla. 2d DCA 2016) )).
In March 2003, Dick executed and delivered a promissory note and a mortgage in favor of National City Mortgage Co., d/b/a Accubanc Mortgage, securing payment of the Note. Dick defaulted under the terms of the Note and Mortgage by failing to make the payment due December 1, 2009, and any subsequent payments.
National City Mortgage merged into National City Bank, which then merged into PNC Bank, N.A. In May 2010, PNC initiated the underlying foreclosure action. Attached to PNC's complaint was, among other things, a copy of the unindorsed Note payable to National City Mortgage. Dick does not dispute PNC's standing at inception.
In February 2012, in conjunction with its ultimately unsuccessful motion for summary judgment, PNC filed with the court the original Note, now indorsed in blank. In 2015, PNC moved to substitute the Bank as party plaintiff. The trial court granted the motion.
At the nonjury trial in July 2018, the Bank called as its only witness Ertha Brathwaite, the default servicing officer for Caliber Home Loans, Inc., the loan servicer. Through Brathwaite, the Bank introduced various documents without objection, including the original, blank-indorsed Note; the 2014 assignment of the Note and Mortgage from PNC to the Secretary of Housing and Urban Development (HUD); the 2014 assignment of the Note and Mortgage from HUD—"by Caliber Home Loans, Inc., as Attorney In Fact"—to the Bank; PNC's letter to Dick advising her that the servicing of her loan was being transferred from PNC to Caliber; the Notice of Sale of Ownership of Mortgage Loan to the Bank, which Caliber sent to Dick; and the Power of Attorney between the Bank and Caliber. Brathwaite testified, among other things, that Caliber serviced the Loan on behalf of the LSF9 Master Participation Trust and acted at the direction of the Bank, the trustee.
On cross-examination, Dick introduced into evidence a Securitization Servicing Agreement (Agreement) dated March 22, 2017, which, she subsequently argued, indicated that the Note was now owned by a different trust—Volt LV, Asset-Backed Notes, Series 2017-NPL2—and that the Bank no longer had standing to enforce it. Dick moved for an involuntary dismissal on that basis and argued further that the Bank's retrieval at trial of the original Note from the court file was insufficient to confer standing. The Bank responded that no evidence supported Dick's argument concerning the significance of the Agreement; that Brathwaite's testimony, the 2014 assignments introduced into evidence, and the Bank's introduction of the original blank-indorsed Note at trial established that the Bank both owned and held the Note; and that there was no evidence of any transfer of the Note from the Bank to any other entity.
The trial court reserved ruling on Dick's motion for involuntary dismissal, and she presented her defense case. In her written closing argument, Dick reiterated her arguments for involuntary dismissal and also argued for the first time that the assignment of the Note from HUD to the Bank was invalid or even fraudulent because there was no evidence that Caliber had been authorized to act on HUD's behalf. The court granted Dick's motion, concluding without elaboration that the Bank lacked standing.
We review de novo the trial court's order of involuntary dismissal. See Deutsche Bank Nat'l Tr. Co. v. Kummer, 195 So. 3d 1173, 1175 (Fla. 2d DCA 2016) (citing Allard v. Al–Nayem Int'l, Inc., 59 So. 3d 198, 201 (Fla. 2d DCA 2011) ).
When a party raises a motion for involuntary dismissal in a nonjury trial "the movant admits the truth of all facts in evidence and every reasonable conclusion or inference based thereon favorable to the non-moving party. Where the plaintiff has presented a prima facie case and different conclusions or inferences can be drawn from the evidence, the trial judge should not grant a motion for involuntary dismissal."
Id. (quoting Day v. Amini, 550 So. 2d 169, 171 (Fla. 2d DCA 1989) ).
Bearing the appropriate analysis and the standard of review in mind, we conclude that the assignments of the Note and Mortgage from PNC to HUD and then from HUD to the Bank were sufficient to warrant denial of Dick's motion notwithstanding Dick's assertion that the latter assignment was invalid if not fraudulent. See Deutsche Bank Nat'l Tr. Co. v. Smith, 276 So. 3d 315, 319 (Fla. 4th DCA 2019) ("[I]n moving for involuntary dismissal, Borrowers were required to admit as truth all of the facts in evidence, including the representations made in the assignments of mortgage that HomEq was acting as the attorney-in-fact for the original lender and Morgan Stanley. Borrowers were likewise required to admit as truth every reasonable conclusion or inference that could be drawn from the assignments of mortgage favorable to the Bank, including that HomEq indeed had the authority to execute the assignments."). More fundamentally, the record shows that although the original, blank-indorsed Note had previously been filed in the court file, the Bank introduced it into evidence at trial, which established the Bank's standing to enforce it. See Wilmington Sav. Fund Soc'y, FSB v. Stevens, 290 So. 3d 115, 118 (Fla. 4th DCA 2020) ("Wilmington filed a motion with the trial court to return the original note prior to trial, but the trial court never gave the parties a ruling, and the court never returned the original note. Regardless, the note from the file was entered into evidence at the bench trial. Even if Wilmington's pretrial motion for release had been denied, the 'introduction of the original note bearing the blank indorsement into evidence at the trial [i]s sufficient to establish ... standing at trial.' " (alteration in original) (quoting PMT NPL Fin. 2015-1 v. Centurion Sys., LLC, 257 So. 3d 516, 518 (Fla. 5th DCA 2018) )); see also Nationstar Mortg., LLC v. Johnson, 250 So. 3d 808, 810–11 (Fla. 2d DCA 2018) (holding that the substitute plaintiff's physical possession of the original, blank-indorsed note at trial established its standing to enforce it).
Accordingly, we reverse the trial court's order granting involuntary dismissal for lack of standing and remand for further proceedings.
Reversed; remanded for further proceedings.
LUCAS and SMITH, JJ., Concur.