Summary
holding lender had standing to bring foreclosure action as a holder under inference that when a lender attaches a copy of a note to its complaint for foreclosure and files the original note in the same condition as the copy, lender actually possessed the note at the time it filed the complaint, even though the copy of note was altered by redaction in compliance with Florida Rule of Judicial Administration 2.425
Summary of this case from Jupiter House, LLC v. Green Tree ServicingOpinion
No. 4D18-1137
04-03-2019
Barry KRONEN and Michelle Kronen, a/k/a Michele Kronen, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR WAMU PASS-THROUGH CERTIFICATES, SERIES 2006-AR3, Windmill Ranch Estates Maintenance Association, Inc., a/k/a Beta Maintenance Association, Inc., the Town Foundation, Inc., and Sabadell United Bank, Appellees.
Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants. Sara T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for appellee Deutsche Bank National Trust Company.
Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
Sara T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for appellee Deutsche Bank National Trust Company.
Warner, J.
In entering final judgment of foreclosure, the trial court found that the appellee had proved standing, relying on the presumption created in Ortiz v. PNC Bank, National Ass'n , 188 So.3d 923, 925 (Fla. 4th DCA 2016). We affirm, as we agree that the presumption applies and write to distinguish this case from Friedle v. Bank of New York Mellon , 226 So.3d 976 (Fla. 4th DCA 2017).
Under Ortiz , if the lender "files with the court the original note in the same condition as the copy attached to the complaint, then ... such evidence is sufficient to" show that the lender actually possessed the note when it filed the complaint, and thus, had standing to bring the foreclosure action. Ortiz , 188 So.3d at 925. However, if there is any evidence or testimony to the contrary, additional proof may be required to show standing. Id. n.2. Here, the trial court held that the appellee had proved its standing because the note attached to the complaint was the same as the note introduced at trial. Although the loan number at the top of the copy of the note was redacted, this was for filing purposes. Thus, the presumption established in Ortiz applied.
In Friedle , we held that the bank had not proved standing under Ortiz because the copy of the promissory note was not in the same condition as the original note introduced at trial, even where those differences were minor but unexplained. Friedle , 226 So.3d at 978-79. We noted that Ortiz had not been decided at the time of the trial in Friedle , so there was no explanation of the differences between the copy of the note filed with the complaint and the original introduced at trial. Id. at 979.
Because both Ortiz and Friedle were decided at the time of the trial in this case, the court addressed the discrepancy, and it noted that the only difference between the copy of the note attached to the complaint and the original note was the redaction of the loan numbers at the top of the instrument. Redaction of loan numbers is required upon filing by Florida Rule of Judicial Administration 2.425(a)(4)(I). Although the rule requires the redaction of only the last four numbers, we see no issue with the application of the Ortiz presumption when more of the loan numbers are redacted. Here, the court viewed both the electronically filed copy attached to the complaint and the original note presented at trial, and it concluded that only the loan number was redacted, as required for filing. Thus, there was an explanation of the difference between the copy and the original. Other than the redaction, the original note was in the same condition as the copy attached to the complaint, and such evidence was sufficient to invoke the Ortiz presumption. Because the appellant offered no evidence to rebut the presumption, the court could rely on it to determine that appellee had proved standing to foreclose the mortgage.
The court also relied on the Pooling and Service Agreement, by which the appellee acquired the loan, which was properly admitted into evidence and included the appellants' loan among those assets transferred into the trust. See Bolous v. U.S. Bank Nat'l Ass'n , 210 So.3d 691, 693-94 (Fla. 4th DCA 2016) (finding Bank had standing to bring foreclosure action where the subject PSA was moved into evidence without objection; the PSA identified the Bank as the trustee, and the corresponding mortgage loan schedule listed the appellant's loan).
We affirm as to all other issues raised.
Gross, J., and Weiss, Daliah, Associate Judge, concur.