The Week-

Is another global financial crisis on the horizon?

Investors are increasingly worried that an escalating political crisisin Italy could lead to a populist, euroskeptic government taking power. As a result, there’s rising uncertainty about whether the country might eventually abandon the euro currency zone or default on its giant debt pile. To make things worse, the Trump administration continues to toy with the idea of a trade war with Europe and China. That would be the last thing the global economy would need if the Italian situation deteriorates further. Debt crises and trade wars are a toxic combination.

To fully understand the risk, it’s helpful to recall that before there was a Brexit, there was the threat of Grexit. There was widespread concern a few years ago that Greece’s government debt crisis would force it to exit the eurozone, and that such a shock departure would be a crushing blow to both the broader European economy, in the middle of recession, and the American economy, which was still recovering from its own downturn.

[THE WEEK]

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D.C. RANDALL, JR., Plaintiff and Appellant,
v.
DITECH FINANCIAL, LLC, Defendant and Respondent.

Legal Aid Society of San Diego, Inc., Alysson Snow and Kathleen Box for Plaintiff and Appellant.

Locke Lord and Regina J. McClendon for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

McCONNELL, P.J.

I

INTRODUCTION

D.C. Randall, Jr., appeals from a judgment dismissing his operative second amended complaint (complaint) against Ditech Financial, LLC (Ditech) after the trial court sustained Ditech’s demurrer to the complaint without leave to amend. Randall contends the court erred in its ruling as to his causes of action for violation of the federal Fair Debt Collection Practices Act (FDCPA; 15 U.S.C. § 1692 et seq.)^[1] and for violation of the state unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.) because these causes of action stated or can be amended to state viable claims.

We conclude the complaint stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6). Consequently, the complaint can also be amended to state a claim under the UCL. We therefore reverse the judgment and remand the matter to the court with directions to conduct further proceedings consistent with this decision.

II

BACKGROUND

A

According to the allegations in the complaint, which we must accept as true for purposes of this appeal (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924), Ditech is a loan servicer and attempts to collect debts on behalf of itself and others in the regular and ordinary course of its business. Ditech services a loan secured by a deed of trust on Randall’s home. Ditech began servicing the loan after Randall had defaulted on the loan.

Following Randall’s default, the trustee recorded a notice of default with intent to sell. Approximately two years later, the trustee recorded a notice of trustee’s sale, scheduling Randall’s home for public auction 21 days later. Randall subsequently received notice the foreclosure sale was postponed for 37 days.

Meanwhile, Ditech advised Randall of the necessary payments to reinstate his mortgage, which included improper fees and charges. Thirty-nine days prior to the foreclosure sale, Randall paid Ditech $20,664.36 in three installments. Ditech accepted the payments, but did not cancel the foreclosure sale.

Randall contacted Ditech multiple times about the foreclosure sale and his mortgage reinstatement. He also enlisted the help of a real estate agent, who called Ditech eight times in the month preceding the foreclosure sale. Two weeks before the foreclosure sale, the real estate agent sent Ditech a written “notice of error” regarding Ditech’s failure to cancel the sale. Ditech never replied to the notice.

During a phone call one week before the foreclosure sale, a Ditech representative stated Randall should be current on his mortgage and the foreclosure sale should be cancelled. Although the representative stated Randall would receive a return phone call later that day regarding the foreclosure sale, the phone call never came.

The next business day, Randall contacted Ditech again. The representative he spoke with stated she had no knowledge of the foreclosure sale and could not confirm its cancellation. The representative also refused to provide Randall with his current loan balance. She told him his account needed to be audited before she could provide him with the information. The same day, the trustee informed Randall that Ditech had neither cancelled the foreclosure sale nor communicated anything to the trustee about the reinstatement of Randall’s loan.

Three days later and one day before the foreclosure sale, Randall filed the instant action. The next day—the day of the scheduled foreclosure sale and 39 days after Randall reinstated his loan—Ditech rescinded the notice of default and cancelled the foreclosure sale.

B

The complaint asserted causes of action for negligence and for violating the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), the Elder and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), California foreclosure law, the FDCPA, the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.), and the UCL. Ditech demurred to the complaint, arguing the complaint did not state sufficient facts to constitute any viable causes of action.

The court found deficiencies in each cause of action and sustained Ditech’s demurrer without leave to amend.^[2] As relevant to this appeal, the court found the FDCPA cause of action was incurably deficient because the code section referenced in it, section 1692f(1), does not apply to nonjudicial foreclosure activity and Randall’s allegations of overpaying to reinstate his loan were not sufficiently specific. The court found the UCL cause of action was incurably deficient because “there is no underlying wrongdoing alleged.”

III

DISCUSSION

“The standards for reviewing a judgment of dismissal following the sustaining of a demurrer without leave to amend are well settled. `”`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the [complaint] states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.”‘” (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1251-1252.)

A

Under the FDCPA, “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” (§ 1692f.) “`To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a “debt collector” collecting a “debt.”‘ [Citation.]” (Izenberg v. ETS Servs., LLC (C.D.Cal. 2008) 589 F.Supp.2d 1193, 1199.)

1

The complaint alleged Ditech violated section 1692f(1) of the FDCPA, which prohibits “[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” For purposes of this section, “`debt collector'” includes a person or entity (1) engaged in “any business the principal purpose of which is the collection of any debts,” or (2) “who regularly collects or attempts to collect . . . debts owed or due . . . another.” (§ 1692a(6).) The term applies to a mortgage loan servicer if the servicer began servicing the mortgage loan after the loan was in default. (§ 1692a(6)(F)(iii); see Perry v. Stewart Title Co. (5th Cir. 1985) 756 F.2d 1197, 1208.)

Here, the complaint alleged Ditech “collects debts, either on behalf of itself or others, in the regular and ordinary course of business.” The complaint also alleged Ditech began servicing Randall’s mortgage loan after the loan was in default. The complaint, therefore, adequately alleged Ditech was a debt collector for purposes of section 1692f(1).

2

The complaint further alleged Ditech engaged in three types of unlawful debt collection activity. Specifically, Ditech failed to halt nonjudicial foreclosure activity after Randall paid to reinstate his loan, Ditech required Randall to pay a reinstatement amount that was inconsistent with the amount of the payments Randall had missed and included improper fees and charges, and Ditech continued to charge Randall default fees and costs after Randall reinstated his loan.

A “`debt'” for purposes of section 1692f(1) is an obligation of a consumer to pay money. (§ 1692a(5); Vien-Phuong Thi Ho v. ReconTrust Company, NA (9th Cir. 2017) 858 F.3d 568, 572.) “[T]he object of non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower.” (Ho, supra, at p. 571.) “Thus, actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect `debt'” and are not actionable under section 1692f(1). (Ho, supra, at p. 572; Dowers v. Nationstar Mortgage, LLC (9th Cir. 2017) 852 F.3d 964, 969-970 (Dowers).)

However, overcharging Randall to reinstate his loan and charging default fees and costs for a loan that is not in default are attempts to collect money and, consequently, are actionable under section 1692f(1). Although Ditech asserts Randall’s allegations on these points were not sufficiently specific, the particularity required of a pleading varies given the parties’ relative knowledge of the facts in issue. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) “[L]ess particularity is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff.” (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474.) Ultimately, the complaint is sufficient if “`the adversary has been fairly apprised of the factual basis of the claim against him.'” (Semole, supra, at p. 721, quoting Jones v. Oxnard School Dist.(1969) 270 Cal.App.2d 587, 593.) Ditech is in at least as good a position as Randall to know how much Ditech charged him to reinstate his loan, how much Ditech charged him between when he reinstated his loan and when Ditech rescinded the notice of default, and the bases for the charges. Accordingly, we conclude Randall sufficiently pleaded an FDCPA cause of action for violation of section 1692f(1), and the court erred in sustaining Ditech’s demurrer to the cause of action.

3

For the first time on appeal, Randall contends he can amend his complaint to also state an actionable claim under section 1692f(6) of the FDCPA for Ditech’s nonjudicial foreclosure activity. Section 1692f prohibits “[t]aking or threatening to take any non-judicial action to effect dispossession or displacement of property” when the debt collector has no intention of taking possession of the property, or holds “no present right to possession of the property claimed as collateral through an enforceable security interest.” Mortgage loan servicers, as enforcers of security interests, fall within the definition of “`debt collectors'” for the purposes of section 1692f(6). (Dowers, supra, 852 F.3d at p. 969; see § 1692(a)(6) [authorizing the application of § 1692(f)(6) to “any business the principal purpose of which is the enforcement of security interests”].) Since Randall has demonstrated he can allege Ditech refused to halt its nonjudicial foreclosure activity until well after he reinstated his loan and then only after he filed the instant action, he has demonstrated he can amend his complaint to state an actionable claim under section 1692f(6) and the court should permit him an opportunity to do so.

B

“The UCL prohibits, and provides civil remedies for, `unfair competition,’ which includes `any unlawful, unfair or fraudulent business act or practice.’ (Bus. & Prof. Code, § 17200.)” (Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1155 (Candelore).) “The UCL’s `unlawful’ prong `borrows violations of other laws . . . and makes those unlawful practices actionable under the UCL.’ [Citation.] `”[V]irtually any law or regulation—federal or state, statutory or common law—can serve as [a] predicate for [an] . . . `unlawful’ [prong] violation.”‘” (Ibid.)

In this case, the complaint did not allege the FDCPA violations as predicates for the UCL cause of action. However, because we conclude the complaint adequately stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6) of the FDCPA, we conclude the complaint can also be amended to state a claim under the UCL and the court should permit Randall an opportunity to do so. (Candelore, supra, 19 Cal.App.5th at p. 1155.)

IV

DISPOSITION

The judgment is reversed and the matter is remanded to the superior court for further proceedings consistent with this opinion. Randall is awarded his appeal costs.

NARES, J. and GUERRERO, J., concurs.

[1] Further statutory references are to this title of the United States Code unless otherwise specified.

[2] Ditech had previously demurred to Randall’s original and first amended complaints. Both of the complaints asserted a UCL cause of action, but neither asserted an FDCPA cause of action. The record does not show the court ruled on Ditech’s demurrer to the original complaint, presumably because Randall filed the first amended complaint beforehand. The court sustained Ditech’s demurrer to the first amended complaint with leave to amend.

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CNBC-

Legislation that eases banking regulations — and modifies rules governing credit reports and some consumer loans — was signed into law by President Donald Trump on Thursday.

The bill, which was approved by the Senate in March, passed the House on Tuesday by a vote of 258 to 159.

The measure rolls back some of the regulations imposed by the Dodd-Frank Act of 2010. That legislation came on the heels of the financial meltdown that rocked the U.S. economy a decade ago, when risky and unaffordable mortgages contributed to millions of homeowners losing their houses to foreclosure.

[CNBC]

Reuters-

A Utah-based national mortgage servicer has been hit with a proposed class action accusing it of failing to help struggling California homeowners avoid foreclosure, violating a state consumer protection law.

Filed on Wednesday in Los Angeles federal court, the lawsuit said Select Portfolio Servicing denied homeowners’ applications for mortgage assistance without properly reviewing them or working with homeowners to find alternatives to foreclosure.

[REUTERS]

Washington Post-

The House on Tuesday passed a plan to roll back banking regulations passed in response to the 2008 financial crisis, sending the bill to President Trump to sign.

The measure leaves the central structure of the post-financial-crisis rules in place, but it would make the most significant changes to weaken the Dodd-Frank banking regulations since they were passed in 2010. It would exempt some small and regional banks from the most stringent regulations, and also would also loosen rules aimed at protecting the biggest banks from sudden collapse.

The measure is nearly certain to become law after its passing in the House, 258 to 159, on Tuesday with nearly all House Republicans and 33 Democrats voting for it. The Senate approved the bill in March with bipartisan backing, and White House officials said that Trump plans to sign it in the coming days.

[WASHINGTON POST]

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LAW360-

The government on Monday defended its False Claims Act claims against New York mortgage foreclosure law firm Rosicki Rosicki & Associates PC and two related companies over allegations that they caused Fannie Mae to pay millions of dollars in reimbursement claims for fraudulently inflated foreclosure expenses.

U.S. attorneys told a New York federal court that contrary to a recent dismissal motion against it, the government has the full authority to bring claims on behalf of Fannie Mae and has pled with sufficient particularity that Rosicki, through…

[LAW360]

CNN-

Wells Fargo recently discovered that some workers altered documents about business customers, raising new concerns about the embattled bank’s internal system of checks-and-balances.

The improper activity took place in 2017 and early 2018 and was brought to light by multiple Wells Fargo (WFC) employees who alerted management, a person familiar with the matter told CNNMoney.

The document altering happened in Wells Fargo’s business banking group, which caters to medium-sized businesses with annual sales of $5 million to $20 million.

[CNN]

JOHN S. TURAN AND MERCEDES TURAN, Appellants,
v.
NATIONSTAR MORTGAGE, LLC, RAINBOW SPRINGS PROPERTY OWNERS ASSOCIATION, INC., PROGRESSIVE INSURANCE COMPANY, AS SUBROGEE OF DONNA VEZINA, ET AL., Appellees.

Mark P. Stopa, of Stopa Law Firm, LLC, Tampa; Latasha Scott, of Lord Scott, PLLC, of Tampa, for Appellants.

Charles P. Gufford, of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee, Nationstar Mortgage, LLC.

No Appearance for other Appellees.

PER CURIAM.

John and Mercedes Turan appeal from a final summary judgment of foreclosure in favor of Nationstar Mortgage, LLC, following the entry of a judicial default. We reverse.

After being served with Nationstar’s amended complaint, the Turans, through counsel, filed a motion to dismiss. After considering Nationstar’s response, the trial court denied the motion to dismiss, directing the Turans to “file an answer to the complaint within 10 days of the date of this order the failure of which may result in a judicial default being entered without further notice or hearing.” When the Turans failed to timely file their answer, the trial court entered a judicial default without a motion from Nationstar or notice to the Turans. Less than a week later, they filed their answer and affirmative defenses. After the trial court denied their motion to vacate the judicial default, a final summary judgment of foreclosure was entered in favor of Nationstar from which the Turans now appeal. As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default.” As a result, a trial court order that provides that a judicial default will be automatically entered in the absence of a timely answer is noncompliant with the rule. See Rangel v. MidFirst Bank, 187 So. 3d 289, 290-91 (Fla. 4th DCA 2016) (holding that trial court’s “self-executing” default language is not permitted under rule 1.500(c), which requires notice of application for default); accord Green Sols. Int’l, Inc. v. Gilligan, 807 So. 2d 693, 696 (Fla. 5th DCA 2002) (stating once “any paper” has been served, rule 1.500(b) requires proper notice of default be given to opposing party, and court enter default). The judicial default was improvidently entered, hence, the final judgment based on that default must be set aside and this matter remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER, EVANDER and LAMBERT, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

KELI N. JOHNSON and THOMAS E. JOHNSON, Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, as Trustee RALI 2007-QS1, Appellee.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants.

William L. Grimsley, Kimberly Held Israel, and N. Mark New, II, of McGlinchey Stafford, Jacksonville, for Appellee.

LUCAS, Judge.

Keli and Thomas Johnson appeal the circuit court’s entry of a final summary judgment against them in a residential mortgage foreclosure case brought by Deutsche Bank National Trust Company Americas, as Trustee RALI 2007-QS1 (RALI). They raise five arguments on appeal. We find merit within the fourth—that RALI failed to conclusively establish its standing to enforce the Johnsons’ promissory note—and reverse the summary judgment on that basis.

The Johnsons borrowed $236,000, apparently in connection with a home improvement construction loan, which was memorialized by a promissory note in that amount dated April 28, 2006. The Johnsons’ note was originally payable to National City Mortgage, a division of National City Bank of Indiana, and secured by a mortgage on the Johnsons’ property in Polk County, Florida. The promissory note contained three endorsements, the last of which made the note payable to “Deutsche Bank Trust Company Americas as Trustee,” with no further identifying information of which trust this entity was acting on behalf of.^[1]

When the Johnsons allegedly defaulted on the note in 2011, RALI filed the underlying complaint. It later amended its complaint twice, so that in its final, operative iteration, RALI alleged it had standing to enforce the Johnsons’ note as a holder of the note. The Johnsons generally denied RALI’s allegations in their answer and asserted several affirmative defenses, including lack of standing on the part of RALI to enforce the note. RALI eventually filed the original note, which contained endorsements appearing to match those on the copy attached to its pleading.^[2]

The case proceeded with itinerant discovery and motion practice, and on July 8, 2016, RALI filed a motion for summary judgment. In support of its motion, it also filed an affidavit signed by Sarah Greggerson, an employee of PNC Mortgage, an entity that purported to be servicing the Johnsons’ loan. It appears from the record that RALI relied upon PNC’s status as its servicer as a basis to establish RALI’s status as a holder of the Johnsons’ note (Ms. Greggerson’s affidavit was the only one filed in support of RALI’s motion for summary judgment). In our view, that was insufficient evidence of RALI’s standing for purposes of summary judgment in this case.

We review a summary judgment under a de novo standard of review. Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)).

Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.”

Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008)). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015) (quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)).

This court has held that in residential mortgage foreclosure cases, the plaintiff bears the burden of proving its standing at the time of trial and at the time it filed its complaint if the issue of standing is contested. See Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 189 (Fla. 2d DCA 2016) (en banc); see also Winchel v. PennyMac Corp., 222 So. 3d 639, 642-43 (Fla. 2d DCA 2017) (noting the “legal oddity” that standing has become in residential foreclosure cases and summarizing, “[o]nce put at issue by a defendant, then, standing becomes a part of the prima facie case that a foreclosure plaintiff must prove in order to secure a judgment”). The summary judgment evidence regarding RALI’s standing—challenged, as it was, by the Johnsons’ affirmative defense—fell short of what was required for a summary adjudication.

Ms. Greggerson’s affidavit stated only that “Plaintiff has owned and held the Note since prior to the filing of the Complaint in this action.” The problem with that assertion, however, is that Ms. Greggerson was not affiliated in any way with the plaintiff, RALI. The limited facts stated in her affidavit failed to address how she derived this knowledge about RALI’s connection to the Johnsons’ note or how RALI became an owner or holder of the Johnsons’ note; and there was no claim within her affidavit that PNC was holding the Johnsons’ note on behalf of RALI. See, e.g., Peters v. Bank of N.Y. Mellon, 227 So. 3d 175, 180 (Fla. 2d DCA 2017)(finding testimony of “case manager” employed by servicer—who took over servicing after the filing of the lawsuit— was insufficient to establish ownership of the lost note because “Ms. Stevens had no personal knowledge about the Bank’s claim to have acquired ownership of the note in 2006. Moreover, Ms. Stevens’s testimony in this regard was not supported by the limited documentary evidence about the loan that was available. Because Ms. Stevens’s testimony was not based on personal knowledge and was not supported by any documentation, we conclude that the testimony was insufficient to establish the Bank’s ownership of the lost note.”); Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So. 3d 987, 988-89 (Fla. 2d DCA 2016) (holding that “the record in this case does not establish that Deutsche Bank had standing to foreclose at the time it filed its complaint” because its sole witness, an employee of its servicer, Wells Fargo, “was unable to provide any testimony as to Deutsche Bank’s acquisition of the note” and remarking that “[t]he only testimony as to possession of the note suggests that Wells Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to the filing of the complaint”); Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (finding second servicer’s representative’s testimony was insufficient to prove first servicer’s standing at time of inception of suit because “[t]hat testimony established at most that the first servicer was in fact servicing the mortgage when it filed suit, not that the first servicer held the note when it filed suit”); Jaffer v. Chase Home Fin. LLC, 92 So. 3d 240, 242 (Fla. 4th DCA 2012)(“Under [Florida Rule of Civil Procedure 1.510(e)], affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show `the affiant is competent to testify to the matters stated therein.'” (quoting Coleman v. Grandma’s Place, Inc., 63 So. 3d 929, 932 (Fla. 4th DCA 2011))). And in this case, the documents attached to Ms. Greggerson’s affidavit did not dispel the question of this note’s ownership or who was the note’s holder such that there was not “the slightest doubt that an issue might exist” concerning RALI’s standing. See Atria Grp., 170 So. 3d at 886. Indeed, on this record, it is not even clear that PNC had the underlying authority to act as a servicer for RALI or to hold the Johnsons’ note on RALI’s behalf. Cf. Rosa, 191 So. 3d at 988 n.2 (noting that foreclosing plaintiff, Deutsche Bank, did not argue constructive possession of its note by its servicer, Wells Fargo, or that Wells Fargo was acting as Deutsche Bank’s agent that was authorized to hold the note on Deutsche Bank’s behalf (citing Phan v. Deutsche Bank Nat’l Tr. Co., 198 So. 3d 744 (Fla. 2d DCA 2016))). With respect to PNC’s authority, Ms. Greggerson’s affidavit stated only that “PNC is the mortgage servicer for the Plaintiff . . . for the mortgage loan account that is the subject of this litigation (the `Mortgage Loan’). A copy of the Power of Attorney from the Deutsche Bank Trust Company Americas, as Trustee to PNC is attached hereto as Exhibit `A.’ ” The limited power of attorney attached to her affidavit actually named Ocwen Loan Servicing, LLC, as RALI’s servicer, not PNC.^[3]Having elected to rely solely on this affidavit and its attachments, RALI failed to meet its burden of proving there was no material issue of fact concerning RALI’s standing. We must, therefore, reverse the final summary judgment.

In so holding, we do not reach the remaining issues the Johnsons present; first, because we need not do so in order to resolve this appeal, but second, because we are hesitant to do so in a case where we have no transcript from the summary judgment hearing in our record. This latter point is one we believe merits some elucidation.

Some of the arguments raised by the Johnsons in this appeal, while perhaps meritorious, presented the very real potentiality that they were either unpreserved or even waived. To take one example, the first issue the Johnsons advanced in their briefing was that RALI should not have obtained a summary judgment premised upon a loan modification agreement that RALI had neither pleaded nor attached to its operative complaint. We can see from our record that the final summary judgment in this case was indeed based, in part, upon a loan modification agreement that was introduced through Ms. Greggerson’s affidavit. We can also see that that loan modification agreement was not mentioned anywhere within RALI’s second amended complaint or attached as an exhibit to that pleading. See Fla. R. Civ. P. 1.130(a) (“All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought . . . must be incorporated in or attached to the pleading.”); cf. Tracey v. Wells Fargo Bank, N.A., 43 Fla. L. Weekly D652b, D655b (Fla. 2d DCA Mar. 23, 2018) (holding that the trial court erred in permitting a foreclosing lender to amend its complaint to conform to the evidence at trial in order to recover on unpled loan modification agreements). What we cannot see is whether the Johnsons brought that pleading impropriety to the circuit court’s attention at any time prior to or during the summary judgment hearing. See Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So. 2d 579, 581 (Fla. 2d DCA 2004) (holding that employer’s failure to object to the sufficiency of employee’s administrative complaint’s verification during the administrative process “acted as a waiver of any objection” to the pleading’s sufficiency (citing Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991))); Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989) (“An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court’s determination.”). Were we to take up this argument, we would have to tacitly assume that the Johnsons had presented it below in the face of a record that is completely silent on that point.

Florida law calls upon appellate courts to provide a careful de novo scrutiny of summary judgment rulings, given what is at stake. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (observing that summary judgment “brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the litigant from the benefit of and right to a trial on the merits of his or her claim”). In that spirit, we, along with our sister courts, have occasionally remarked that the lack of a transcript of a summary judgment hearing will not necessarily thwart an appellate review of a summary judgment. See, e.g., Kamin v. Fed. Nat’l Mortg. Ass’n, 230 So. 3d 546, 548 n.2 (Fla. 2d DCA 2017) (“[A] hearing transcript is usually `not necessary for appellate review of a summary judgment.'” (quoting Houk v. PennyMac Corp., 210 So. 3d 726, 730 (Fla. 2d DCA 2017))); Shahar v. Green Tree Servicing LLC, 125 So. 3d 251, 254 (Fla. 4th DCA 2013) (“[H]earing transcripts ordinarily are not necessary for appellate review of a summary judgment.”); Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 958-59 (Fla. 3d DCA 2010) (holding that it was “not necessary to procure a transcript of the summary judgment hearing” where “the [summary judgment] evidence—in the form of the pleadings, [the defendant’s] affidavit, and the county records”—demonstrated that genuine issues of material fact remained (quoting Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998))).

But the context in which this observation arises is almost universally confined to appeals concerning the sufficiency of the summary judgment evidence before the trial court. See, e.g., Kamin, 230 So. 3d at 548; Shahar, 125 So. 3d at 253-54; Gonzalez, 37 So. 3d at 958-59. That was why in Houk, 210 So. 3d at 731, a case where we devoted a section of analysis to the absence of a summary judgment hearing transcript, we took care to point out that “in this case,” where the summary judgment evidence about enforcement of a lost note included “the operative complaint, . . . [the] answer and affirmative defenses, the motion and the order for substitution of the plaintiff, the amended motion for summary judgment, and the supporting and opposing affidavits, including the affidavit of lost note,” we had “all of the portions of the record necessary for us to determine whether the summary judgment was properly entered.” “Under these circumstances,” we concluded, a hearing transcript would provide no further insight about the evidentiary record’s sufficiency. Id. These kinds of pronouncements, issued within case-specific, de novo reviews of evidentiary records, should not be read to the neglect of securing court reporters to transcribe summary judgment hearings. To the contrary, presenting an adequate record—one that demonstrates not only what evidence was presented below but also which arguments were preserved—remains the appellant’s burden in an appeal of a summary judgment. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (“Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court.” (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Cagwin v. Thrifty Rents, Inc., 219 So. 3d 1003, 1004 (Fla. 2d DCA 2017) (discussing appellant’s argument that the affiant who executed a summary judgment affidavit did not have sufficient knowledge to attest to the matters in the affidavit but concluding “we cannot determine whether such a challenge was properly raised or addressed at the summary judgment hearing because we have no transcript” (citing Zarate v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 556, 557-58 (Fla. 3d DCA 2012))); Black Point Assets, Inc. v. Fed. Nat’l Mortg. Ass’n, 220 So. 3d 566, 567 (Fla. 5th DCA 2017) (addressing the sufficiency of a complaint and summary judgment evidence to establish foreclosure and noting “Black Point’s additional objections to the summary judgment were not preserved for appeal”); Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) (“Any basis for reversal of summary judgment must be preserved by raising the issue in the trial court.”).

All of which is to say, the de novo review that we employ for summary judgment rulings is not a gateway to reach unpreserved legal arguments, as if they were fundamental error. Cf. Coba v. Tricam Indus., Inc., 164 So. 3d 637, 646 (Fla. 2015)(“[I]n civil cases, reversal based on the concept of `fundamental error’ where a timely objection has not been made is exceedingly rare.”). So while a lack of a transcript, in and of itself, will not necessarily prohibit appellate review of the evidence underlying a summary judgment ruling, it could in some cases stymie the fullness of a legal argument challenging that ruling on appeal if there is a question about whether the argument was preserved. We reiterate, then, what we stated in Houk: while it might not be necessary to procure a transcript from a summary judgment hearing in every case, it is indeed “often helpful to do so,” id. at 731 (quoting Seal Prods., 705 So. 2d at 975), especially in cases where preservation of a legal argument might otherwise be in question.

Here, however, we are satisfied that the record we do have reflects a genuine issue of material fact that was argued below. RALI’s standing was a contested point almost from the beginning of this litigation, and the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor. For that reason, we reverse the circuit court’s final summary judgment and remand this case for further proceedings.

Reversed and remanded.

SILBERMAN and SLEET, JJ., Concur.

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

[1] Independently of the endorsements, RALI also filed a series of assignments, which it maintained established its standing as an owner and a holder of the Johnsons’ note. These assignments would not establish RALI’s standing for purposes of summary judgment, however, because the final assignment in the series only purported to assign the Johnsons’ mortgage to RALI, not the note itself. See, e.g., Houk v. PennyMac Corp., 210 So. 3d 726, 732 (Fla. 2d DCA 2017) (holding that plaintiff “did not acquire standing to foreclose based on an assignment of only the mortgage”); Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016) (“[A]ssignment was insufficient to show standing because it only purported to assign the mortgage, not the note.”); Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) (“A bank does not have standing to foreclose where it relies on an assignment of the mortgage only.”). RALI’s second amended complaint asserts its standing solely on the theory that it was the holder of the Johnsons’ note.

[2] RALI has not argued, either below or in this appeal, that it was entitled to an inference of possession of the note at the time the complaint was filed under Ortiz v. PNC Bank, National Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (“[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.”). Moreover, the trial court never made a finding upon which we could conclude that the Ortiz inference would have been applicable. See, e.g., Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) (“[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue.”).

[3] A separate “certification” of one of Ocwen Loan Servicing, LLC’s assistant secretaries was also attached as an exhibit to Ms. Greggerson’s affidavit, and it appeared to include an enumerated list of certain PNC employees authorized to act on Ocwen’s behalf. Ms. Greggerson’s name did not appear on that list.

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Reuters-

Royal Bank of Scotland (RBS.L) has agreed to pay a smaller-than-expected $4.9 billion to resolve a U.S. investigation into its sale of mortgage-backed securities, paving the way for a long-awaited return of cash to UK taxpayers who bankrolled its post-crisis survival.

RBS said that $3.46 billion of the proposed civil settlement would be covered by existing provisions and that the bank would take a $1.44 billion charge in the second quarter to cover the rest.

Analysts had estimated the U.S. Department of Justice could impose a fine of up to $12 billion on RBS for mis-selling mortgage-backed securities in the run-up to the 2007-2008 financial crisis.

[REUTERS]

Bloomberg-

If HSBC Holdings Plc, UBS Group AG and Wells Fargo & Co. were concerned that the Trump administration might continue the big-ticket bank penalties of the Obama era, there are mounting signs that they need not be.

Royal Bank of Scotland Group Plc says it has reached a tentative deal with the Justice Department to pay $4.9 billion to resolve an investigation into its sale of toxic mortgage-backed securities a decade ago. The Justice Department, without citing a figure, confirmed a pact was near.

The RBS penalty would be about half of what many analysts had expected the bank to pay. Those estimates were based, in part, on the size of the bank’s MBS portfolio, which was larger than most. An RBS deal for under $5 billion would be the first time that a mortgage settlement with the Justice Department was lower than the same bank’s penalty to the Federal Housing Finance Agency, according to Bloomberg Intelligence.

[BLOOMBERG]