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Bank of NY Trust Co., successor to JPMC v. RODGERS | FL 3RD DCA: Dissenting Judge “file contained neither the original note nor the original mortgage”

Bank of NY Trust Co., successor to JPMC v. RODGERS | FL 3RD DCA: Dissenting Judge “file contained neither the original note nor the original mortgage”


Many original notes and mtges have never been filed as I previously warned about BONY and/or the endorsement page(s) are missing. Especially from Countrywide/ Bank of America/ America’s Wholesale Lender!

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Q. Okay, as far as the copy of the note is concerned, to your knowledge do you know anybody who held the note whether or not any of the people named in this action ever held a note to your knowledge?

[Objection sustained. Counsel nonetheless continuing . . . .]

Q. Whether Fairbanks Capital Corporation, Residential Funding
Corporation[,] J.P. Morgan, New York Bank of New York [sic] ever
held the original note?

A. I do not have personal knowledge of the original note.
. . . .

Third District Court of Appeal
State of Florida, January Term, A.D. 2012
Opinion filed January 18, 2012.
Not final until disposition of timely filed motion for rehearing.

The Bank of New York Trust Company, N.A., as successor to
JPMorgan Chase Bank, N.A., as trustee,
Appellant,
vs.
George H. Rodgers and Caroline J. Rodgers,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Margarita

EXCERPT:

SHEPHERD, J., dissenting.

This case is illustrative of the consequences of a breakdown of a property
transfer system. Because of the breakdown in this case, I would affirm the
involuntary dismissal of the Bank of New York’s (the Bank) attempted foreclosure
action in this case.

The Bank’s action is based upon a standard FNMA/FHLMC promissory
note and mortgage executed on June 25, 1999, by George H. Rodgers and Caroline
J. Rodgers to Metropolitan Mortgage Co., in its capacity as the originating lender
on the Rodgers’ residential property. The action was initiated on January 5, 2005,
by JP Morgan Chase Bank, formerly known as Chase Manhattan, as Trustee,
Residential Funding Corporation, as Attorney in Fact (JP Morgan Chase). The
sole witness offered by the Bank to prove the Bank’s ownership of the promissory
note and mortgage, and the default on the loan, was Annassa Blackman, Business
Relationship Manager for Litton Loan Services, the servicing agent for the loan
since January 30, 2002.1 Ms. Blackman testified from a file she brought with her
to trial, but it is clear she was not the custodian of those records, and Bank counsel
did not attempt to prove otherwise. Despite vigorous objection by counsel for the
Rodgers, the trial court nevertheless permitted Ms. Blackman to testify as to the
contents of the file.

The file contained neither the original note nor the original mortgage. Ms.
Blackman admitted in her testimony she “[had] no knowledge of the last [entity]
who had it or anything else about the original note.” She thought the note was lost
by counsel during the course of a prior foreclosure action filed by JP Morgan
Chase in January 2003, but upon being shown a copy of the complaint filed in the
2003 foreclosure action, acknowledged that action, like the present one, also
contained a claim for re-establishment of lost note. 2, 3 Thus, it cannot be said, as
the majority asserts, that the note “disappeared in the bowls of the clerk’s office
after being filed in a prior proceeding.”

Nor do the copies of the transfer documentation in the file brought by Ms.
Blackman to the trial conclusively resolve the central issue in this case. The
Rodgers executed the promissory note and mortgage on June 25, 1999. There can
be no question but that Metropolitan Mortgage Co. had the original documents at
that time. The copy of the original note, admitted into evidence by the trial court
over the Rodgers’ objection, reflects it was endorsed on a date unknown by
Metropolitan Mortgage Co. to Fairbanks Capital Corporation, and then on May 14,
2001, Fairbanks Capital executed an Assignment of Deed of Trust, purporting to
assign both the note and mortgage to JP Morgan Chase. A copy of an allonge,
purportedly attached to the promissory note, indicates that on some unknown date
the promissory note was endorsed by Fairbanks Capital Corporation to Residential
Funding Corporation, and on some later date from Residential Funding to JP
Morgan Chase, as Trustee. Absent testimony from a witness with knowledge, it
cannot be determined exactly when, between June 25, 1999, and the date of the
filing of the foreclosure complaint in this case, the promissory note was lost or by
what entity.

Section 673.3091 of the Florida Statutes (2004), titled “Enforcement of lost,
destroyed, or stolen instrument,” provides as follows:

(1) A person not in possession of an instrument is entitled to enforce
the instrument if:

(a) The person seeking to enforce the instrument was entitled to
enforce the instrument when loss of possession occurred, or has
directly or indirectly acquired ownership of the instrument from a
person who was entitled to enforce the instrument when loss of
possession occurred;
(b) The loss of possession was not the result of a transfer by the
person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument
because the instrument was destroyed, its whereabouts cannot be
determined, or it is in the wrongful possession of an unknown person
or a person that cannot be found or is not amenable to service of
process.

As has been the case in many recent foreclosure actions—see, e.g., Mazine v. M &
I Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011) (reversing final judgment of
foreclosure where the bank failed to prove it holds the note and mortgage in
question); Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 214 (Fla. 5th DCA 2011)
(reversing final summary judgment of foreclosure where U.S. Bank neither
tendered original note nor offered any evidence of its whereabouts at summary
judgment hearing); Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla.
4th DCA 2010) (reversing final summary judgment of foreclosure where record on
appeal contained neither original note nor any other evidence that U.S. Bank
owned or held the note); U.S. Bank Nat’l Ass’n v. Kimball, 27 A. 3d 1087, 1092
(Vt. 2011) (dismissing foreclosure complaint on basis trial court properly
concluded U.S. Bank lacked standing to show it was holder of note at time
complaint filed); Kondaur Capital Corp. v. Hankins, 25 A. 3d 960, 962 (Me. 2011)
(reversing summary judgment where party did not hold note or mortgage at time
complaint was filed)—the Bank failed to prove, and may be unable to prove, who
owns the promissory note and mortgage in this case. Nor is this the first time in
recent memory the Bank of New York has found itself in this predicament in our
appellate courts. See Verizzo v. Bank of N.Y., 28 So. 3d 976, 978 (Fla. 2d DCA
2010) (reversing summary judgment of foreclosure in favor of the Bank of New
York just last year where, as is equally true in the case before us, “[n]othing in the
record reflects assignment or endorsement of the note by JP Morgan Chase Bank to
the Bank of New York . . .”). The Bank should receive the same result in this
district court of appeal this year as it did on nearly identical facts in our sister
Second District Court of Appeal last year.

It is apodictic there can be no cause of action to foreclose a mortgage unless
we know where the paper is and that it actually represents something. There is
much “sand in the gears” of our property transfer system in these times. However,
we cannot bend the rules. A person seeking to enforce an instrument conveying an
interest in real property must demonstrate he has directly or indirectly acquired
ownership of the instrument. The majority errs by not insisting upon this
fundamental precept in this case.

I would affirm the decision of the trial court.

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