JELIC vs BAC HOME LOANS SERVICING, LP | FL 4DCA - The assignment of a mortgage cannot serve as evidence that the note was also transferred, even though a transfer of the note usually will serve as a transfer of the mortgage

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JELIC vs BAC HOME LOANS SERVICING, LP | FL 4DCA – The assignment of a mortgage cannot serve as evidence that the note was also transferred, even though a transfer of the note usually will serve as a transfer of the mortgage

JELIC vs BAC HOME LOANS SERVICING, LP | FL 4DCA – The assignment of a mortgage cannot serve as evidence that the note was also transferred, even though a transfer of the note usually will serve as a transfer of the mortgage

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

DIANA JELIC,
Appellant,

v.

BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME
LOANS SERVICING, L.P.,
Appellee.

No. 4D14-516

[November 4, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal, Judge; L.T. Case No.
2009CA017255XXXXMB.
Peter Ticktin, Josh Bleil, Michael Vater, Heather Cherepkai, and
Kendrick Almaguer of The Ticktin Law Group, P.A., Deerfield Beach, for
appellant.
Tricia J. Duthiers and Kristen A. Tajak of Liebler Gonzalez & Portuondo,
Miami, for appellee Bank of America, N.A., successor by merger to BAC
Home Loans Servicing, LP, f/k/a Countrywide.

FORST, J.

We again consider the question of standing to foreclose upon a
mortgage. Diana Jelic (“Owner”) signed a mortgage and note in 2005. In
2008, she stopped making payments on the note. BAC Home Loans
Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP (and since
merged into Bank of America, N.A.) (“the Bank” when used collectively)
initiated a foreclosure proceeding. Owner challenged the Bank’s standing
to foreclose along with its compliance with contractual conditions
precedent in the mortgage and note. For the reasons given below, we agree
with Owner that the Bank did not properly demonstrate its standing and
therefore reverse the trial court’s Final Judgment of Foreclosure.
Owner initially executed a note and mortgage in favor of Sterling Bank.
The note was later indorsed to Countrywide Bank. At some point, the note
was indorsed from Countrywide Bank to Countrywide Home Loans
Servicing. But the copy of the note attached to the complaint shows only
the first indorsement (to Countrywide Bank). The second indorsement
appears only on the note introduced at trial. No testimony was introduced
giving the date on which the second indorsement was made, or stating that
Countrywide Home Loans Servicing held the note at the time of the
complaint.

The Bank provides two arguments as to how it proved that it was the
holder of the note at the time the complaint was filed. Even if we ignore
the fact that those arguments seem to contradict each other and instead
address each individually, the Bank still has failed to show that it was the
holder as of the date that the complaint was filed.

The Bank’s first argument is that the indorsements alone transferred
the note into its control. However, the failure to introduce testimony
establishing the date the second indorsement was made is fatal to this line
of reasoning. We have said before, and apparently need say again: if an
indorsement is undated and appears for the first time after the complaint
is filed, some evidence must be introduced that will support a finding that
the indorsement was made prior to the complaint’s filing. Tilus v. AS
Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (“Where the
plaintiff files the original note after filing suit, an undated blank
endorsement on the note is insufficient to prove standing at the time the
initial complaint was filed”); Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950,
951 (Fla. 4th DCA 2014); LaFrance v. U.S. Bank Nat’l Ass’n, 141 So. 3d
754, 756 (Fla. 4th DCA 2014) (“A plaintiff’s lack of standing at the
inception of the case is not a defect that may be cured by the acquisition
of standing after the case is filed and cannot be established retroactively
by acquiring standing to file a lawsuit after the fact.”) (internal quotation
marks and citation omitted).

Statements that make exclusive use of the present tense (here: “Bank
of America is the holder of the note” (emphasis added)) are insufficient.
What is required is some evidence that the foreclosing party was the holder
at the appropriate time. Although the Bank’s sole witness did say that the
Bank “owned the loan prior to the filing of the complaint,” she immediately
corrected herself, answering with “No” when asked “So Bank of America
never acted as the owner of this loan?” Because of that retraction, we
cannot hold that the Bank introduced the necessary evidence to prove that
the Bank held the note at the time the initial complaint was filed.
The Bank’s second argument as to how the note transferred is that a
pre-complaint assignment of the mortgage to Countrywide Home Loans
Servicing is evidence that the note was also transferred before the
complaint. But that is not how the law operates. Again we repeat: the
mortgage follows assignment of the note. Bristol v. Wells Fargo Bank, Nat’l
Ass’n, 137 So. 3d 1130, 1133 (Fla. 4th DCA 2014). The assignment of a
mortgage cannot serve as evidence that the note was also transferred, even
though a transfer of the note usually will serve as a transfer of the
mortgage. Lamb v. Nationstar Mortg., LLC, 40 Fla. L. Weekly D1912 (Fla.
4th DCA Aug. 19, 2015) (“A bank does not have standing to foreclose where
it relies on an assignment of the mortgage only.”).

As part of this second argument, Bank also argues that one specific line
in the mortgage assignment transferred the note itself. But again, Florida
law does not allow for a transfer in this method. To transfer a note, there
must be an indorsement, which itself must be “on [the] instrument” or on
“a paper affixed to the instrument.” § 673.2041(1), Fla. Stat. Here, the
signature on the mortgage assignment did not constitute an indorsement
of the note because it was not on the note or an attached paper.
The Bank has failed to establish its standing to foreclose. We therefore
need not consider the Owner’s argument based on conditions precedent.

The judgment of the trial court is reversed.
Reversed.

CIKLIN, C.J., and MAY, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing

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2 Responses to “JELIC vs BAC HOME LOANS SERVICING, LP | FL 4DCA – The assignment of a mortgage cannot serve as evidence that the note was also transferred, even though a transfer of the note usually will serve as a transfer of the mortgage”

  1. Stupendous Man - Defender of Liberty, Foe of Tyranny says:

    “Again we repeat …”

    According to that language this would be at least the third time the 4th DCA has reversed a trial court on similar facts:

    1) The DCA said it the first time
    2) The DCA said it a second time, repeating itself
    3) Now the DCA is saying it a third time, repeating itself again

    I only see two alternatives here:

    1) Florida trial judges don’t know the law
    2) Florida trial judges don’t give a sh*t what the law is

    In either instance they should be removed from office … like tomorrow, Monday November 9, 2015, at 9:00 AM, and such removal should be by any means necessary (like a group of Florida citizens literally picking them up, carrying them out of their offices, or courtrooms, and setting them out on the curb).

  2. JohnR says:

    Stupendous Man… there is but another alternative here:

    1) Florida Judges know the law and are openly violating it…
    Be that for their own perceived personal benefit (ie… look at me for I am God!), on the behest of another entity (If I allow Wells Fargo to be convicted of fraud it will ruin all the Courts employee’s retirement accounts… and mine too!) or under order from a “higher power” (ie… “this it the President of the US… you have to give the Banks Free houses or the Bankers are gonna commit suicide.”).

    It has been 8 years since the “standing” issues were started to be raised with regularity throughout the Nations Courts… far too long for any Judge in this Nation Not To “know the Law” as the Law has been given to them, laid out in front of them with specificity and clarity over and over and over again by defendants attempting to defend themselves.

    So far, since the inception of this crisis we’ve had 5 courageous County recorder’s retain an outside firm to audit their County records. In EACH of these audits, 10’s of thousands of fraudulant records have been found. ALL placed within those records by the Lending Institutions that created the Banking Crisis in the first place.

    If you or I were to forge someone’s name on the bottom of a check… even a check that we ourselves created representing another person’s account… we would have the anti-terrorist swat teams surrounding us and ready to end our lives.

    Instead the bankers forged MILLIONS of documents and continue to this day, fabricating out of thin air documents they march into our courts with and lay in front of a judge, who all have had more than ample time to study and understand the reality of those forged documents… and the judges give free houses to the Banks.

    25 years ago we all lived in the perception that a Banker was a man above reproach. We gave them the solemn duty of safe guarding our funds. Banking was an elevated, Honorable Profession.

    25 years ago we all lived in the perception that a Judge was a man/woman not only above reproach, but held within a stick and structured combination of oath’s, sworn duties and The Law itself. A position of Power they received and maintained ONLY if they operated within that very strict and rigid framework of oath and Legislation.

    Today there is no such illusion for either.

    Bannkers are thieves plain and simple… well maybe not so plain as they’ve designed a system of theft that is so complicated that those they steal from cannot even afford to hire adequate representation… from a system they created to be intentionally inadequate!

    And the Judge’s actions in the past 10 years Nationwide… I am at a loss to fully express their loathsome behavior as anything but treasonous to the American Public.

    Gone is the veil of Justice and now know that lady Justice is no longer blind… she see’s all and grabs from the less fortunate to feed the Corporate Banking and Legal Elite Cartels.

    What was once a figure of Honesty, Piety, Dignity, Truth, Justice and the American way… our Judiciary has turned into a scheming, conniving thieving Bitch.

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