ELSTON/LEETSDALE | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "ELSTON/LEETSDALE"

ELSTON / LEETSDALE vs CWCAPITAL | FL 4DCA “did not file any evidence, affidavits or other documents, supporting…it was authorized …on behalf of the trust”

ELSTON / LEETSDALE vs CWCAPITAL | FL 4DCA “did not file any evidence, affidavits or other documents, supporting…it was authorized …on behalf of the trust”


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

January Term 2012

ELSTON/LEETSDALE, LLC, a Delaware limited liability company,
Appellant,

v.

CWCAPITAL ASSET MANAGEMENT LLC, solely in its capacity as
Special Servicer on behalf of U.S. BANK, N.A., Successor to STATE
STREET BANK AND TRUST COMPANY, as Trustee for the registered
holders of J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-C1BC1,
Appellee.

No. 4D11-3151

[April 4, 2012]

POLEN, J.

Elston/Leetsdale, LLC (Elston) appeals the trial court’s non-final
order, requiring it to make payments to CWCapital Asset Management
LLC, solely in its capacity as special servicer on behalf of U.S. Bank,
N.A., successor to State Street Bank and Trust Company, as trustee for
the Registered Holders of J.P. Morgan Chase Commercial Mortgage
Securities Corp., Mortgage Pass-Through Certificates, Series 2001-
C1BC1 (CW) during the pendency of the action. Because CW did not
properly plead standing, we reverse.

The facts are as follows. Elston executed a promissory note as
evidence of a loan made by First Union National Bank; to secure
payment, Elston executed a mortgage and security agreement, along with
an assignment of leases and rents. First Union assigned its rights in the
loan documents to Morgan Guaranty Trust Company of New York, which
then assigned its right, title and interest in the loan to State Street Bank
and Trust Company, as Trustee for J.P. Morgan Chase Commercial
Mortgage Securities Corp., Series 2001-C1BC1 (the trust). Presently, the
trust is the current owner and holder of all the loan documents subject
to this appeal.

CW, the special servicer for the trust, filed a verified complaint, in its
own name, for foreclosure. The complaint alleged that Elston defaulted
on the loan, and the trust elected to accelerate and declare immediately
due and owing the entire unpaid principal balance together with accrued
interest. In response to CW’s motions, the trial court ordered Elston to
show cause as to why payments should not b e ma d e during the
pendency of the foreclosure action. Elston then moved to dismiss the
complaint, arguing that CW failed to properly allege standing to pursue
enforcement of the security instruments. CW argued that it had
standing to bring the foreclosure action because it is duly authorized by
the trust to do so and, as special servicer for the loan, it is entitled to
take all required action to protect the interests of the trust. After a
hearing,1 the trial court entered a payment order, requiring Elston to pay
CW $42,404.91 per month during the pendency of the action. This
appeal followed.

Elston argues that the trial court erred b y ordering it to make
payments to CW because CW failed to properly allege standing. CW
argues that Elston has not furnished a sufficient record for this court to
review the trial court’s ruling.2 On the merits, CW argues that, as agent
and special servicer to the trust, which owns the loan documents at
issue, it has standing to foreclose.

“Whether a party is the proper party with standing to bring an action
is a question of law to be reviewed de novo.” FCD Dev., LLC v. S. Fla.
Sports Comm., Inc., 37 So. 3d 905, 909 (Fla. 4th DCA 2010) (quoting
Westport Recovery Corp. v. Midas, 954 So. 2d 750, 752 (Fla. 4th DCA
2007)).

Every action may be prosecuted in the name of the real party
in interest, but a personal representative, administrator,
guardian, trustee of an express trust, a party with whom or
in whose name a contract has been made for the benefit of
another, or a party expressly authorized by statute may sue
in that person’s own name without joining the party for
whose benefit the action is brought.

Fla. R. Civ. P. 1.210(a). “In its broadest sense, standing is no more than
having, or representing one who has, ‘a sufficient stake in an otherwise
justiciable controversy to obtain judicial resolution of that controversy.’”
Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d DCA
1985) (quoting Sierra Club v. Morton, 405 U.S. 727, 731 (1972)).

In the mortgage foreclosure context, “standing is broader than just
actual 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.

We affirm on the other issue raised by Elston, as we find that the trial
court properly determined that CW was not required to register as a
commercial collection agency or as a licensed mortgage broker under
Chapters 559 and 494, Florida Statutes.

Reversed and Remanded.

TAYLOR and HAZOURI, JJ., concur.
* *

[ipaper docId=88060508 access_key=key-1zi7bzuhrs7m5kl811n5 height=600 width=600 /]

 

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)


GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Chip Parker, www.jaxlawcenter.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com
Advertise your business on StopForeclosureFraud.com

Archives