WFTV-

A Port Orange family will be kicked out of their home after it was sold at auction over a $1,900 debt.

Homeowner Katelyn Annis says it’s not fair.

“It’s not their home, this is our home.”

Annis, her husband and children will be kicked out of their house in a matter of days.

[WFTV]

SUPREME COURT – STATE OF NEW YORK
IAS PART 49 – SUFFOLK COUNTY

BANK OF AMERICA, NATIONAL ASSOCIATION
Plaintiff,

-against-

FRANCO G. PURITA, CLAUDIA PURITA, WELLS
FARGO BANK, N.A., JOHN DOE (Said names being
fictitious, it being the intention of Plaintiff to designate
any and all occupants of premises being foreclosed
herein, and any parties, corporations or entities,
if any, having or claiming an interest or lien upon
the mortgaged premises.)
Defendants.

EXCERPT:

In meeting this burden, the plaintiff benefits from the long-standing doctrine of presumption of regularity:
generally, a letter or notice that is properly stamped, addressed, and mailed is presumed to be delivered by that
addressee (Trusts & Guar. Co. v Barnhardt, 270 NY 350, 352 [1936]; News Syndicate Co. v Gatti Paper Stock
Corp., 256 NY 211, 214-216 [ 1931 ]; Connolly v Allstate Ins. Co., 213 AD2d 787, 787 (3d Dept 1995]; Kearney
v Kearney, 42 Misc3d 360, 369 [Sup Ct, Monroe County 2013]). The presumption ofreceipt by the addressee
“may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to
ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286
AD2d 679, 680 [2d Dept 200 I]). CPLR 2103(f)(l) defines mailing as “the deposit of a paper enclosed in a first
class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated,
at that person’s last known address, in a post office or official depository under the exclusive care and custody
of the United States Postal Service within the state” (see, Lindsay v Pasternack Tilker Ziegler Walsh Stanton
& Romano LLP, 129 AD3d 790 [2d Dept 2015]). “If that proof is established, the burden shifts to the
borrower,” and “the final legal truism prevails: once the presumption of proper service has been established,
mere denial of receipt is insufficient to rebut the presumption” (Kearney v Kearney, 42 Misc3d 360, supra at
370; see, Matter of ATM One v Landaverde, 2 NY3d 472, 478 [2004]).

In meeting this burden, the plaintiff benefits from the long-standing doctrine of presumption of regularity:
generally, a letter or notice that is properly stamped, addressed, and mailed is presumed to be delivered by that
addressee (Trusts & Guar. Co. v Barnhardt, 270 NY 350, 352 [1936]; News Syndicate Co. v Gatti Paper Stock
Corp., 256 NY 211, 214-216 [ 1931 ]; Connolly v Allstate Ins. Co., 213 AD2d 787, 787 (3d Dept 1995]; Kearney
v Kearney, 42 Misc3d 360, 369 [Sup Ct, Monroe County 2013]). The presumption ofreceipt by the addressee
“may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to
ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286
AD2d 679, 680 [2d Dept 200 I]). CPLR 2103(f)(l) defines mailing as “the deposit of a paper enclosed in a first
class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated,
at that person’s last known address, in a post office or official depository under the exclusive care and custody
of the United States Postal Service within the state” (see, Lindsay v Pasternack Tilker Ziegler Walsh Stanton
& Romano LLP, 129 AD3d 790 [2d Dept 2015]). “If that proof is established, the burden shifts to the
borrower,” and “the final legal truism prevails: once the presumption of proper service has been established,
mere denial of receipt is insufficient to rebut the presumption” (Kearney v Kearney, 42 Misc3d 360, supra at
370; see, Matter of ATM One v Landaverde, 2 NY3d 472, 478 [2004]).

Unlike the defense of a failure to satisfy a contractual condition precedent which must be pleaded (see,
CPLR 3015[a]; 3018), a party who has timely appeared may raise the absence or.defective notice defense on
motion, even though it was not included in an answer nor made the subject of a pre-answer to dismiss
(Citimortgage, Inc. v Pembelton, 39 Misc3d 454, 462 [Sup Ct, Suffolk County 2013] [finding that the failure
to comply with RPAPL § 1304 gives rise to a heightened or “super” defense to the plaintiffs claim that is not
subject to waiver]). Since, the notice defense remains viable during the pendency of the action it may be raised
by a non-defaulting party any time prior to judgment (Citimortgage, Inc. v Pembe/ton, 39 Misc3d 454, supra
at 462).

The Court will first address the cross motion by the defendant mortgagors because that determination may
render the plaintiffs motion-in-chief academic. The defendant mortgagors established prima facie that the
plaintiff failed to satisfy a condition precedent by failing to provide them with notice of default prior to
demanding payment of the loan in full (see, GMAC Mtge. LLC v Bell, 128 AD3d 772 [2d Dept 2015]; Wells
Fargo Bank, N.A. v Eisler, 118 AD3d 982 [2d Dept 2014]; cf, JPMorgan Chase Bank v Kang, 2015 NY Slip
Op 30955 [U] [Sup Ct, Queens County 2015] [affidavit of merit of plaintiff’s “Legal Specialist III” sufficiently
detailed proof of mailing of the default notice, by indicating that she had knowledge of and has reviewed business
records, which were maintained in the course of the plaintiffs regularly conducted business activities, and said
records included proof of mailing documentation obtained from the United States Post Office at or near the time
of mailing was made]). In support of their cross motion, the defendant mortgagors rely upon, inter alia, the
affidavit of the plaintiffs representative and their own affidavits. In her affidavit, the plaintiffs representative
provided a surnrnary of relevant events, including the date that the default in payments, and the amounts due as
well as the sending of default notices pursuant to the mortgage. The plaintiffs representative, however, did not
allege sufficient facts as to how compliance with the default notice provisions in the mortgage were
accomplished; nor did she identify the individual who allegedly did so (see, Wells Fargo Bank, N.A. v Eisler,
[* 7]
118 AD3d 982, supra; U.S Bank Natl Assn. v Liang, 2015 NY Slip Op 31096 [U] [Sup Ct, Queens County
2015]; see also, Nocella v Fort Dearborn Life Ins. Co. of N. Y., 99 AD3d 877 [2d Dept 2012); cf, Preferred
Mut. Ins. Co. v Donnelly, 111 AD3d 1242 [41
h Dept 2013]). More specifically, the representative did not give
any indication that she is familiar with the standard mailing practices or procedures of the entity alleged to have
sent the notices, and that those practices or procedures were followed in this instance. The representative also
made no attempt to explain the significance of the certain documentation submitted herein, which was addressed
solely to Mr. Purita.

Additionally, the plaintiff’s affiant neither specified the exact business records upon which she relies in
her affidavit; nor did she allege that she is familiar with the plaintiff’s record keeping practices and procedures
to insure that items are properly addressed and mailed and, thus, she did not attempt to lay a foundation for their
admissibility (see, CPLR 4518[a]; US Bank N.A. v Madero, 125 AD3d 757 [2d Dept 2015]; Palisades
Collection, LLC v Kedik, 67 AD3d 1329 [2d Dept 2009); see also, Cadle Co. v Gregory, 293 AD2d 33 5 [I 51 Dept
2002] [finding that the affidavit of the plaintiffs employee that was submitted in support of the motion did not
identify how he was familiar with the facts and circumstances stated therein, and that his assertions of a default
and of certain amounts due were made without evidentiary support and were conclusory ]). Furthermore, the
affiant did not assert that she has personal knowledge of the defendant mortgagors’ payment history since the
time of the default (see, JP Morgan Chase Bank, N.A. v RADS Group, Inc., 88 AD3d 766 [2d Dept 2011)).
In any event, to the extent that the statements made by the affiant are based documents that were in the
possession of Wells Fargo prior to the alleged transfer of the note and the mortgage to the plaintiff, these records
constituted hearsay (see generally, People v Goldstein, 6 NY3d 119 [2005]). The mere filing of papers received
from other entities, “even if they are retained in the regular course of business, is insufficient to qualify the
documents as business records, because such papers simply are not made in the regular course of the recipient,
who is in no position to provide the necessary foundation testimony” (Lodato v Greyhawk N. Am., LLC, 39
AD3d 494, 495 [2d Dept 2007) [internal quotation marks omitted]). Since the plaintiffs representative failed
to lay a proper foundation for the admission of the records relating to the default notice allegedly served in this
case, under the business records exception to the hearsay rule (see, CPLR 45 I 8[a]), those of her assertions that
were based on these records are inadmissible (see, US Bank N.A. v Madero, 125 AD3d 757, supra). Moreover,
the defendant mortgagors submit their personal affidavits in which they indicate that they indicate, among other
things, that they did not receive the default notice as required by the terms of the mortgage.

In opposition, the plaintiff relied upon the same affidavit of its representative, which is insufficient to
raise a triable issue of fact as to the defendant mortgagors’ cross motion, thereby warranting denial of the motion
and the granting of the cross motion (see, GMAC Mtge. LLC v Bell, 128 AD3d 772, supra; Wells Fargo Bank,
N.A. v Eisler, 118 AD3d 982, supra). Counsel argument, made in the reply papers, that the plaintiff was only
required to send one notice pursuant to the mortgage is to no avail, because the plaintiff failed to demonstrate
compliance as to either of the defendant mortgagors.

While compliance with the 90-day notice requirements of RP APL § 1304 satisfies the 30-day default
notice requirements in a mortgage document (see, Wachovia Bank, N.A. v Carcano, 106 AD3d 724 [2d Dept
2013 ]), the defendant mortgagors also established prima facie that the plaintiff failed to satisfy a condition
precedent by failing to provide Mr. Purita with a 90-day notice for the same reasons articulated above (see, US
Bank N.A. v Madero, 125 AD3d 757, supra; see also, Hudson City Sav. Bank v DePasquale, 113 AD3d 595
[* 8]
[2d Dept 2014]; cf, TD Bank, N.A. v Leroy, 121 AD3d 1256 [3d Dept 2014]; Deutsche Bank Natl. Trust Co.
v Spanos, 102 AD3d 909, supra; US Bank N.A. v Caronna, 92 AD3d 865 [2d Dept 2012]). In any event, the
conclusory statements set forth in the affidavit of merit that a 90-day notice has been given “to borrower(s),” even
when combined with copies of certain documentation submitted herein, is insufficient to meet the requirements
of the statute as to Mr. Purita, as the borrower (see, Hudson City Sav. Bank v DePasquale, 113 AD3d 595,
supra; US Bank Natl Assn. v Lampley, 46 Misc3d 630 [Sup Ct, Kings County 2014]). The plaintiffs
representative did not allege sufficient facts as to how compliance was accomplished. She also does not state
that she served the notice; nor does she identify the individual who allegedly did so. Additionally, the plaintiff
submitted neither an affidavit of service of the 90-day notice upon Mr. Purita, nor an affidavit from one with
personal knowledge of the mailing, along with copies of the certified mailing receipts stamped by the United
States Post Office on the date of the alleged mailing (see, Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d
909, supra).

The plaintiff’s reliance upon certain findings made in a certain unreported case, Bank of N. Y. Mellon v
Aquino, 2012 NY Slip Op 33143 [U] (Sup Ct, Queens County 2012), is misplaced. In Aquino, the Supreme
Court, Queens County (Kerrigan, J.) determined, inter alia, that the 90-day notice requirement ceased to apply
where the defendants in that case, Alberto and Elizabeth Aquino, had applied for and received a loan
modification in 2008, subsequently defaulted under the loan modification agreement and, after commencement
of the action, applied for another modification with the plaintiff in that action. Aquino is clearly inapposite to
the facts of this case. Unlike Aquino, the plaintiff’s submissions concerning this issue merely show that the
defendant mortgagors applied for a loan modification after commencement. Thus, the plaintiff failed to raise a
triable issue of fact in opposition to the cross motion (see, Hudson City Sav. Bank v DePasquale, 113 AD3d
595, supra). Accordingly, the complaint is dismissed insofar as asserted against to the defendant mortgagors.
In light of the above, this court need not consider, as academic, the defendants mortgagors remaining
arguments in support of their cross motion. Moreover, to the extent plaintiff seeks summary judgment, the
appointment of a referee to compute and certain incidental relief, the same is denied as academic.
Accordingly, the defendant mortgagors’ cross motion for an order granting them summary judgment
dismissing the complaint insofar as asserted against them is granted, and the plaintiffs motion for summary
judgment and other incidental relief is denied. In view of the foregoing, the proposed order submitted by the
plaintiff has been marked “not signed.”

At Part 37 of the Supreme Court held
in and for the County of Queens at the
Courthouse located at 88-11 Sutphin
Boulevard, Jamaica, New York, 11435
on the 7th day of January, 2016

MOHAMMAD SOROUSH,
Plaintiff

-against-

CITIMORTGAGE, INC. ET AL,
Defendant(s).

The plaintiff, Mohammad Soroush, commenced this action, pursuant to RPAPL §
1501(4), to cancel an encumbrance with respect to the property located at 249-23 88th
Road, Bellerose, NY 11426 (Block 8668—Lot 0173), Queens County, New York.
Essentially, the plaintiff seeks an order granting summary judgment under CPLR 3212,
and for an order discharging the mortgage, which is currently recorded with the Queens
County Clerk, and extinguishing the underlying promissory note that was executed in
connection with that property. Inasmuch as issue has been joined in this case, the
plaintiffs motion is timely within the meaning of Brill v City of New York, 2 NY3d 648
(2004). The defendant, Citimortgage, opposes the instant application. The plaintiffs
motion is granted in all respects.

UPON the plaintiffs moving papers, with exhibits attached, the papers filed by the
defendant, Citimortgage, in opposition, such papers showing what proceedings have
heretofore been had herein, the Summons and Complaint that has been filed in this case;
the Summons and Complaint that was filed in a foreclosure action under Index Number
6544/2009 by defendant, Citimortgage, against the plaintiff, Mohammad Soroush; the
decision and order of a Justice of this Court, dated December 21, 2011, and filed on
December 28, 2011, dismissing that foreclosure action; the decision and order of that
same Justice, dated November 26, 2014, and filed on December 15, 2014, denying the
motion by defendant, Citimortgage, for a default judgment against the plaintiff,
Mohammad Soroush; and due proof that the defendant, Citimortgage, has been duly
served with process, and all the papers on file in this action and due deliberation having
been had thereon, the motion by Mohammad Soroush is granted in all respects.

According to the plaintiff, the defendant, Citimortgage, commenced a foreclosure
action under Index Number 6544/2009, against Mohammad Soroush on March 17, 2009,
with respect to the property located at 249-23 88th Road, Bellerose, New York, 11426
(Block 8668—Lot 0173). According to the records of the Queens County Clerk, on March
19, 2009, Soroush was allegedly served with the Summons and Complaint pursuant to
CPLR 308(2); and copies of the required documents were allegedly mailed to him on
March 23, 2009. Affidavits of both service and mailing were subsequently filed with the
Queens County Clerk on March 24, 2009. Soroush neither filed an answer nor made an
appearance in that foreclosure action and, as a result, Citimortgage filed a motion for a
default judgement against him. In a decision, dated December 20, 2011, and filed on
December 28, 2011, a Justice of the Supreme, finding that personal jurisdiction had never
been acquired over Soroush, denied the motion and dismissed the action against him.
To the knowledge of this Court, that decision has neither been appealed nor vacated by
Citimortgage. Almost three years later, Citimortgage inexplicably filed another motion for
a default judgment against Soroush. That application was denied by the Court which
originally dismissed the foreclosure action, in a decision and order, dated November 26,
2014, and filed on December 15, 2014.

Almost four months later, on March 15, 2015, Citimortgage sent Soroush a letter
revoking its acceleration of the loan. That letter, which Soroush has annexed to its
moving papers, and which is dated March 13, 2015; reads that “[t]he maturity of the Loan
was previously accelerated by filing a lawsuit to foreclosure the mortgage. ..[and that] Mlle
maturity of the loan is hereby de-accelerated, immediate payment of all sums owed is
hereby withdrawn, and the Loan is, re-instituted as an installment loan.” See Exhibit A of
moving papers by counsel, dated July 29, 2015. In a letter by counsel for Soroush, dated
April 10, 2015, Soroush rejected Citimortgage’s “offer to ‘de-accelerate’ and ‘reinstitute’
the loan…” It was Soroush’s position that there were no provisions in either the Note or
the Mortgage for “de-acceleration of an accelerated balance…” and that “[t]he language
used in the Note and Mortgage is clear and unambiguous and does not provide for a
unilateral ‘de-acceleration.” See Exhibit B of moving papers by counsel, dated July 29,
2015. According to Soroush, once Citimortgage made the decision to accelerate the
payments due on the underlying note on March 18, 2009, “absent a subsequent, mutually
signed written agreement between Citimortgage and…Mohammad Soroush there can be
no de-acceleration.” See Exhibit B of moving papers by counsel, dated July 29, 2015. In
short, Soroush argues, loince Citimortgage elected to accelerate pursuant to the Note
and Mortgage, there was no longer an installment debt, and there was !lever any
agreement between the parties to modify the situation.” Id.

On June 22, 2015, Soroush filed the instant action and seeks an order, under
RPAPL § 1501, canceling the lien on the subject property. That is, the plaintiff,
Mohammad Soroush, seeks an order discharging the mortgage, which is currently
recorded with the Queens County Clerk, and extinguishing the underlying promissory note
that was executed in connection with that property. The motion by Mohammad Soroush,
is granted in all respects.

RPAPL § 1501(4) provides that “[w]here the period allowed by the applicable
statute of limitation for the commencement of an action to foreclose a mortgage .. . has
expired,” any person with an estate or interest in the property may maintain an action “to
secure the cancellation and discharge of record of such encumbrance, and to adjudge the
estate or interest of the plaintiff in such real property to be free therefrom.” RPAPL § 1501
(4). In this case, Soroush, the property owner, has made a prima facie showing of his
entitlement to judgment as a matter of law by establishing that the underlying foreclosure
action commenced by the defendant mortgagee in 2009 was dismissed by another Judge
of this Court on the ground that personal jurisdiction was never acquired over him “and
that the commencement of a new foreclosure action would be time-barred by the
applicable six-year statute of limitations (see CPLR 213 (4). JBR Constr. Corp. v Staples,
71 AD3d 952, 953 (2″d Dept. 2010); see also Pulver v Dougherty, 58 AD3d 978 (3rd Dept.
2009); see also Plaia v Safonte, 45 AD3d 747 (2nd Dept. 2007); Le Pore v Shaheen, 32
AD3d 1330 (4° Dept. 2006); Zinker v Makler, 298 AD2d 516 (2nd Dept. 2002); compare
Caliguri v JPMorgan Chase Bank, N.A., 121 AD3d 1030 (rd Dept. 2014); Landau, P.C. v
LaRossa, Mitchell & Ross, 11 NY3d 8, 13 n 3. (2008). 1 Because a successive
foreclosure action is permitted following a dismissal for lack of personal jurisdiction, such a
dismissal is obviously not on the merits. See eg Mobile Air Transp., Inc. v Summit
Handling Sys., Inc., 2015 NY Slip Op 07955 (2″d Dept 2015); see also Matter of Schulz v
State of New York, 81 NY2d 336, 347 (1993); Carrick v Central Gen. Hasp., 51 NY2d 242,
251-252 (1980). That, however, does not end the inquiry, for RPAPL 1501(4) is satisfied
when it is clear that the statute of limitations bars a foreclosure action against a
mortgagor. Thus, if a prior foreclosure action is dismissed for failure to acquire
jurisdiction over a mortgagor, a subsequent foreclosure action will be permitted only if it is
brought within the applicable statute of limitations. See U.S. Bank N.A. v Dellarmo, 128
AD3d 680, 680-81 (2nd Dept. 2015). In this case, the statute of limitations prevents
Citimortgage from instituting a new foreclosure action against Soroush. See CPLR 213
(4). For these reasons, the facts of this case are controlled by the plain language of
RPAPL 1501(4), which make it abundantly clear that a mortgagee is entitled to have a
mortgage cancelled as an encumbrance on real property if “the applicable statute of
limitation for the commencement of an action to foreclose a mortgage … has expired…”
RPAPL § 1501 (4). In this case, the Soroush has met his prima facie burden of his
entitlement to relief under RPAPL § 1501(4). In opposing the instant motion, “the
defendant has failed to raise a triable issue of fact as to whether the statute of limitations
was tolled or revived.” JBR Constr. Corp. v Staples, supra 71 AD3d at 953; see also
Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Rack v Rushefsky, 5 AD3d 753 (2nd Dept.
2004). Accordingly, the plaintiffs motion is granted.

The Court makes one final observation. Generally, an action to foreclose a
mortgage may be brought to recover any unpaid sums that are due within the six-year
period that immediately precedes the commencement of the action. See Wells Fargo
Bank N.A. v Burke, 94 AD3d 980, 982 (rd Dept. 2012); see also CPLR 213 (4). In that
respect, the Court recognizes that as to mortgages payable in installments, separate
causes of action will accrue “for each installment that is not paid, and the statute of
limitations begins to run, on the date each installment becomes due.” Wells Fargo Bank
N.A. v Burke, supra 94 AD3d at 982; see Wells Fargo Bank N.A. v Cohen, 80 AD3d 753,
754 (2nd Dept. 2011); see also Loiacono v Goldberg, 240 AD2d 476, 477 (2nd Dept. 1997);
see also Pagano v Smith, 201 AD2d 632, 633 (2nci Dept. 1994). Nevertheless, it is wellestablished
that “even if a mortgage is payable in installments, once a mortgage debt is
accelerated, the entire amount is due and the Statute of Limitations begins to run on the
entire debt.” See EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 (2nd Dept. 2001); see
also Wells Fargo Bank N.A. v Burke, supra 94 AD3d at 982; see also Lavin v Elmakiss,
302 A02d 638, 639(3rd Dept. 2003); Zinker v Makler, 298 AD2d 516, 517 (3′ Dept. 2003).

– In this case, the complaint filed with the Queens County Clerk under Index Number
6544/2012, establishes that the defendant failed to make payments on the underlying
promissory note of $533,850.00 on December 8, 2008 and thereafter, and that
Citimortgage clearly and unequivocally “elect[ed] to call due the entire amount secured by
the mortgage,” which, at the time of the filing of the complaint, contained a principal
balance of $529,719.81. See Paragraphs 1 thru 6 of Citimortgage’s Complaint that was
filed with the Queens County Clerk on December 28, 2011. Notwithstanding the
argument by Citimortgage, the papers of both sides, as well as the records on file with the
Queens County Clerk, make it patently clear that Citimortgage provided Mohammed
Soroush, the borrower in this case, with notice of its decision to “exercise the option to
accelerate the maturity of a loan.. .and such notice [was both] ‘clear and unequivocal’
Wells Fargo Bank, N.A. v Burke, supra 94 AD3d at 982; see also Sarva v Chakravorty, 34
AD3d 438, 439 (2nd Dept. 2006); see also EMC Mtge. Corp. v Smith, 18 AD3d 602, 603
(2′ Dept. 2005); See EMC Mtge. Corp. v Patella, supra 279 AD2d at 605-606; see also
Arbisser v Gelbelman, 286 AD2d 693, 694 (2″d Dept. 2001). Having clearly and
unequivocally elected to accelerate the entire amount that was due on the loan that was
secured by the mortgage, both by a letter to Mohammad Soroush and in the foreclosure
action it filed against him under Index Number 5644/2009, Citimortgage may not insulate
itself from the provisions of RPAPL § 1501 by simply sending Soroush a letter indicating it
no longer wished to exercise the acceleration option contained in the promissory note and
mortgage. See Wells Fargo Bank, N.A. v Burke, supra 94 AD3d at 982. That letter
made it abundantly clear that “[t]he maturity of the loan was previously accelerated by
filing a lawsuit to foreclose the mortgage.” See Exhibit E of moving papers by counsel,
dated July 29, 2015. Accordingly, this Court must grant the motion by the plaintiff,
Mohammed Souroush, for summary judgment and issue an order declaring that, the
subject mortgage is invalid, and directing the County Clerk of Queens County to cancel it.
Id; see also RPAPL § 1501(4).

Accordingly, for reasons stated in this decision, the plaintiffs motion is granted in all
respects.

It is therefore:

ORDERED that the instant motion by the plaintiff, Mohammad Soroush, for
summary judgment is granted; and it is further

ORDERED that the subject mortgage held by defendants, Citimortgage, Inc., is
declared invalid pursuant to RPAPL § 1521(4); and it is further

ORDERED that the County Clerk of Queens County is directed to cancel the
mortgage held by defendant, CitiMortgage, Inc.

Accordingly, the plaintiffs motion is granted in all respects.

This constitutes the decision and order of this Court.

SETTLE ORDER ON NOTICE

Dated: January 7, 2016

footnote: 1 Specifically, in this case, Citimortage moved for a default judgment against the
defendant, Mohammad Soroush, in 2011. The Court that presided over Citimortage’s
application for a default judgment against the defendant, Mohammad Soroush, instead,
dismissed the underlying foreclosure action under Index Number 6544/2009, holding that
“CPLR 306(a) requires the affidavit of service of a summons show that service was made in an
authorized manner. The affirmative burden of alleging compliance with the mailing is placed
upon the plaintiff. ..[and that] [t]he affidavit of service must show the details of the mailing of
process and ‘mere mailing is not an authorized manner.” See Decision and Order Braithwaite
Nelson, J., dated December 21, 2011, and filed on December 28, 2011. That Court concluded
that the affidavit of service under Index Number 6544/2009 did not establish that Citimortgage
complied with the requirements of mailing contained in CPLR 308(2) inasmuch as it failed to
provide “the required details of the purported mailing.” Id. For instance, the affidavit fails to
establish that “the summons was mailed to the defendant at his last known residence or at his
actual places of business” Id. As the Court further noted, “the affidavit is entirerly devoid of
any business or location to which the summons was purportedly mailed.” Id. For these
reasons, that Court dismissed the foreclosure action filed by Citimortgage against Mohammad
Soroush. Rather than move to reargue the decision of that Judge or to take an appeal of her
ruling to the Appellate Division, Second Department, Citimortgage, simply filed a second default
motion against Soroush, which was denied in a decision and order, dated November 26, 2014,
and filed December 15, 2014.

The video looks edited but

I’M FEELING THE BERN!!

USUNCUT-

According to Hillary Clinton, if you were a victim of the foreclosure crisis, it was probably your fault.

The only problem with that argument is that it’s not even close to factually correct.

Clinton in 2007: Homeowners “should have known they were getting in over their heads”

When Clinton ran for president during her second term as New York’s U.S. Senator, she gave a tepid speech at the NASDAQ headquarters on December 5, 2007 — before the financial crisis reached a boiling point — about reforming Wall Street’s housing loan practices, largely excusing financial criminals for their behavior.

[US UNCUT]

image: Hillary -Reuters Stephen Lam

EVERY SUNDAY
3:00 PM HAWAII
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

image: danieltyrkiel.co.uk

h/t Living Lies

In its continuing struggle to be fair and balanced, the Supreme court of the State of Florida has issued some new rules and new forms for filing foreclosures. It obviously is NOT an attempt to revamp all foreclosures on the assumption that most foreclosures are wrongful. But it does move us a little closer to getting to the truth of the matters asserted.

Flasupct New Rules Sc13 2384

AP-

Goldman Sachs said Thursday it had reached a roughly $5 billion settlement as part of a federal and state probe into its role in the sale of mortgages in the years leading up into the housing bubble and subsequent financial crisis.

It is by far the largest settlement the investment bank has reached related to its role in the crisis, but the payment dwarfs the payments made by some of its Wall Street counterparts.

Goldman will pay $2.39 billion in civil monetary penalties, $875 million in cash payments and provide $1.8 billion in consumer relief in the form of mortgage forgiveness and refinancing as part of the agreement. The U.S. Department of Justice, the attorneys general of Illinois and New York and other regulators who are part of the settlement have not officially signed off on the deal, which could take some time.

[AP]

Michael Vater, Hailey F. Lampert, Peter Ticktin, and Kendrick Almaguer of The Ticktin Law Group, P.A., Deerfield Beach, for appellee Gino Alessio.

LEVINE, J.

The issue presented is whether the trial court erred in granting involuntary dismissal, with prejudice, without considering the Kozel factors and whether the trial court erred in granting a motion in limine which acted effectively as an involuntary dismissal. We find the trial court erred in both actions. Therefore, we reverse.

Appellant, OneWest Bank, FSB, brought a foreclosure action against appellee Gina Alessio. During the course of litigation, discovery disputes arose out of appellee’s difficulty deposing one of the bank’s former employees, Brian Bernett. As a result, the trial date was continued, and the trial court entered an order directing the bank to name the single corporate representative who would testify at trial and to allow that witness to be deposed. The bank named Tre’ava Manuel, whom appellee thereafter deposed.

Before the trial date, the bank amended its witness list to include a total of eleven witnesses. Appellee did not object and, shortly before trial, moved to continue because of a medical emergency and because appellee continued to have difficulty deposing the bank’s former employee, Bernett. The trial court granted the continuance and scheduled the trial for a third date and issued a new pretrial order.

In response to the new pretrial order, the bank submitted a new witness list, this one listing twenty-seven witnesses. Then, about one week before trial was set to begin, appellee moved in limine to strike the bank’s witness list and to limit the bank to Manuel, the witness appellee had a chance to depose. The bank responded, stating that Manuel was going to be on vacation and that it planned to call Nicole Tollefson, who had been named on the eleven-person witness list, but was not named on the twenty-seven person witness list.

The court granted appellee’s motion in limine. It stated the bank had engaged in “repeated [and] willful contumacious conduct . . . due to violations of court orders to the detriment” of appellee. It struck the bank’s twenty-seven-person witness list and further struck the bank’s only trial witness. The trial court further denied the bank’s request to continue.

On the day of trial, the bank acknowledged that it had no witnesses to call because all of them had been stricken. Appellee moved for involuntary dismissal. The court dismissed the bank’s case with prejudice without considering the Kozel factors on the record.

The bank appeals the trial court’s involuntary dismissal of the bank’s case with prejudice without considering the Kozel factors. The bank further contends that the trial court’s order granting appellee’s motion in limine was tantamount to an involuntary dismissal. We find the trial court erred and thus reverse the involuntary dismissal for reasons stated below.

The Florida Supreme Court in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993),identified factors for a trial court to consider “in determining whether dismissal with prejudice is warranted.” These six factors are:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Id.

A trial court’s failure to consider the Kozel factors when determining whether dismissal is appropriate “is, by itself, a basis for remand for application of the correct standard.” Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So. 3d 422, 427 (Fla. 4th DCA 2011) (quoting Ham v. Dunmire, 891 So. 2d 492, 500 (Fla. 2004)).

In this case, because the trial court failed to consider the Kozel factors before involuntarily dismissing the bank’s case with prejudice, we reverse. Normally, we would remand so the trial court could make the requisite findings. See, e.g., Alsina v. Gonzalez, 83 So. 3d 962 (Fla. 4th DCA 2012). We do not do so here because the dismissal came as a result of the bank having all of its trial witnesses improperly struck.

This court has “condemned the use of motions in limine to summarily dismiss a portion of a claim.” Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986). “The purpose of a motion in limine is generally to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” Dailey v. Multicon Dev. Co., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982). A motion in limine may not serve as an unnoticed alternative to a motion to dismiss or a motion for summary judgment. Rice, 483 So. 2d at 560.

The order granting appellee’s motion in limine struck all of the bank’s witnesses a few days before trial. It did so because the bank allegedly failed to comply with pretrial orders, not because of evidentiary concerns. Thus, for all practical purposes, the lower court’s order sanctioned the bank with involuntary dismissal because it left the bank without any possibility of proceeding to trial. As we stated in Rice and Dailey,the purpose of a motion in limine is to exclude prejudicial evidence; it is not an alternative to a motion to dismiss. Thus, the trial court erred when it granted appellee’s motion in limine and struck all of the bank’s witnesses, resulting in an effective grant of dismissal.^[1]

In summary, we hold the trial court erred by not considering the Kozel factors when entering dismissal with prejudice. We further hold the trial court erred when it granted appellee’s motion in limine and, in effect, transformed the motion in limine into a motion to dismiss. As such, we reverse and remand to the lower court for trial.

Reversed and remanded.

CIKLIN, C.J., and TAYLOR, J., concur.

Not final until disposition of timely filed motion for rehearing.

[1] Our decision is limited to the improper use of a motion in limine. We do not express an opinion as to the propriety of striking the twenty-seven person witness list, the exclusion of witnesses that had not been deposed, or whether entry of involuntary dismissal as a sanction would have been an abuse of discretion had the issue been properly presented.

In this foreclosure case, the trial court granted the borrower’s motion for involuntary dismissal because the bank did not present competent substantial evidence of its standing to foreclose. We affirm.

The record in this case reveals that, at one time or another, at least six different banking entities claimed ownership of the borrower’s note. The problem is not the number of entities claiming ownership, but the similarities of their names. Two of the entities are:

• JP Morgan Chase Bank; and

• JP Morgan Chase & Co.

Two others are:

• Bank of New York Company, Inc.; and

• The Bank of New York Mellon Trust Company, National Association

We write to emphasize that when a nonholder in possession attempts to establish its right to enforce a note, and thus its standing to foreclose, the precise identity of each entity in the chain of transfers is crucial.

At bar, the plaintiff is:

The Bank of New York Mellon Trust Company, National Association fka The Bank of New York Trust Company, N.A. as Successor to JPMorgan Chase Bank N.A. as Trustee for RASC 2004KS4 [hereinafter “the Bank of New York Mellon”].

In pursuit of this foreclosure, the Bank of New York Mellon presented an original note bearing a special indorsement in favor of “JP Morgan Chase Bank, as Trustee.”¹ At trial, a witness for the Bank of New York Mellon testified that the note was deposited into a trust with JP Morgan Chase Bank as the original trustee. The witness also testified that the Bank of New York Mellon became the successor trustee in April of 2006.

An excerpt of a Pooling and Servicing Agreement (PSA) was placed into evidence. The PSA created the Residential Asset Securities Corporation Series 2004–KS4 Trust and listed JPMorgan Chase Bank as the trustee. The witness agreed that the PSA did not establish that the Bank of New York Mellon had any interest in the note.

A 200+ page document was placed into evidence entitled “Purchase and Assumption Agreement by and between the Bank of New York Company, Inc. and JPMorgan Chase & Co.” (emphasis added). This purchase agreement was dated April 7, 2006. The witness was under the impression that the agreement established that the plaintiff purchased the trust assets of JP Morgan Chase Bank. However, the document contradicts his testimony. Neither the plaintiff (the “Bank of New York Mellon Trust Company, N.A.”) nor the indorsee on the note and trustee of the RASC 2004KS4 Trust (“JP Morgan Chase Bank ”) are parties to the purchase and assumption agreement.

“When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person.” § 673.2051(1), Fla. Stat. (2014). Where a bank is seeking to enforce a note which is specially indorsed to another, the bank is a nonholder in possession. Murray v. HSBC Bank USA, 157 So.3d 355, 358 (Fla. 4th DCA), review dismissed, 171 So.3d 117 (Fla.2015). A nonholder in possession may prove its right to enforce the note through:

(1) evidence of an effective transfer;

(2) proof of purchase of the debt; or

(3) evidence of a valid assignment.

See Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1040 (Fla. 4th DCA 2015). A nonholder in possession must account for its possession of the instrument by proving the transaction (or series of transactions) through which it acquired the note. Murray, 157 So.3d at 358.

At bar, the plaintiff attempted to prove its right to enforce the note through proof of purchase of the debt. The plaintiff’s proof of purchase, however, is an agreement between two entities that have no relationship to either the plaintiff or the indorsee. At most, the agreement establishes that somehow JP Morgan Chase & Co. became the trustee for the RASC 2004KS4 Trust and transferred/sold its interest in the trust to a company called The Bank of New York Company. The Agreement does not connect the indorsee of the note (JP Morgan Chase Bank) to the plaintiff (the Bank of New York Mellon).

This issue was discussed in Verizzo v. Bank of New York, 28 So.3d 976 (Fla. 2d DCA 2010). There, the Bank of New York attempted to foreclose on a note indorsed to JPMorgan Chase Bank, as Trustee. Id. at 977. At summary judgment, the Bank of New York produced an assignment between MERS and the Bank of New York. Reversing summary judgment, the court found:

The promissory note shows that Novastar endorsed the note to “JPMorgan Chase Bank, as Trustee.” Nothing in the record reflects assignment or endorsement of the note by JPMorgan Chase Bank to the Bank of New York or MERS. Thus, there is a genuine issue of material fact as to whether the Bank of New York owns and holds the note and has standing to foreclose the mortgage.

Id. at 978 (emphasis added).

At bar, there is nothing in the record connecting the indorsee, JP Morgan Chase Bank, to the plaintiff, the Bank of New York Mellon.² The plaintiff thus failed to prove the series of transactions through which it acquired the note from the original lender. Murray, 157 So.3d at 358–59. For this reason, the Bank of New York Mellon did not establish its standing as nonholder in possession with the rights of a holder, and the defendant’s motion for involuntary dismissal was properly granted.

Affirmed.

FOOTNOTES

1.  The original lender was Home Loan Corporation dba Expanded Mortgage Credit. The note bears two special indorsements: (1) Home Loan Corporation ? Residential Funding Corporation; (2) Residential Funding Corporation ? JP Morgan Chase Bank, as Trustee.

2.  We have not overlooked the plaintiff’s other evidence (an “officer’s certificate” and an assignment). The officer’s certificate incorrectly identifies the parties to the purchase and assumption agreement and cannot be relied on by the plaintiff to establish the chain of transfers. The assignment, which purports to assign the mortgage from MERS to the plaintiff in May of 2009, is ineffective because according to the testimony and the PSA, MERS had no interest to assign after 2004 when the loan was placed in the trust.

STEVENSON, J.

WARNER and FORST, JJ., concur.

Raw Story-

Lakeview Loan Servicing, LLC v. Pendleton (Ill. App. Ct. 2016)

View original: From the court   |   Our backup

¶ 27 The Staff Commentary on this regulation further explains, “[I]f a security interest is taken

in A’s ownership interest in a house and that house is A’s principal dwelling, A is a consumer for

purposes of rescission, even if A is not liable, either primarily or secondarily, on the underlying

consumer credit transaction.” (Emphasis added.) 12 C.F.R. pt. 226, Supp. I, § 226.2(a)(11), Note 2

(2010).

¶ 28 Clearly, Regulation Z and the Staff Commentary support Pendleton’s position that she was

entitled to TILA disclosures, because she was a consumer whose ownership interest in her home

was subject to the mortgage. It makes no difference whether she was liable on the note, as long as

her principal dwelling was used as security for the loan, which it unquestionably was. …….

. . .

– 12 –

¶ 36 For the reasons stated above, we vacate the trial court’s dismissal of Pendleton’s

counterclaim and third-party complaint and its striking of Pendleton’s affirmative defenses. We

remand for further proceedings.

¶ 37 Vacated and remanded.

_________________________________________________________________________________________

SEE ALSO: (Referenced in above decision.)

12 CFR Part 226, Supplement I to Part 226 – Official Staff Interpretations

2(a)(11) Consumer.

{Note}
2. Rescission rules. For purposes of rescission under §§ 226.15 and 226.23, a consumer includes any natural
person whose ownership interest in his or her principal dwelling is subject to the risk of loss. Thus, if a security
interest is taken in A’s ownership interest in a house and that house is A’s principal dwelling, A is a consumer
for purposes of rescission, even if A is not liable, either primarily or secondarily, on the underlying consumer
credit transaction. An ownership interest does not include, for example, leaseholds or inchoate rights, such as
dower.
_______________________________________________________

[PDF]

Financial Freedom Acquisition, LLC v. Standard Bank and …

Sep 24, 2015 – On October 14, 2010, plaintiff, OneWest Bank N.A.. 1 filed a complaint
….. See 12 C.F.R. pt. 226, Supp. I, § 226.2(a)(11), Note 2 (2010). ¶ 24.

EVERY SUNDAY
3:00 PM HAWAII
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

DBR-

A Broward Circuit Court judge has thrown out a proposed class action lawsuit against former foreclosure king David Stern and his company, DJSP Enterprises Inc., that was previously dismissed by a federal judge.

Judge Jack Tuter on Friday granted summary judgment to DJSP, Stern and Kumar Gursahaney, the company’s former chief financial officer, treasurer and executive vice president. They were sued by former shareholders: hedge fund Philadelphia Financial Management of San Francisco LLC and Blue Lion Masters Fund, a Cayman Islands limited partnership.

The lawsuit alleged the hedge funds lost nearly $7 million on their DJSP shares because Stern and Gursahaney failed to disclose adverse information about the condition of the company, which led to artificially inflated share prices. The causes of action were common law fraud and common law negligent misrepresentation.

Read more: http://www.dailybusinessreview.com/id=1202746666245/Judge-Ejects-Class-Action-Against-Sterns-Foreclosure-Company#ixzz3wsCgPlKq

AND I AM CERTAIN IT DOESN’T STOP HERE!

…..UNTIL SHE GETS CAUGHT IN THE COOKIE JAR!! Remember LPS ?

Want more? Check out these posts about her – https://stopforeclosurefraud.com/?s=bondi&x=59&y=3

Palm Beach Post-

Florida’s top law enforcement officials knew by 2012 that Millennium Laboratories, the nation’s largest drug testing company, was defrauding Florida Medicaid of millions.

But that did not stop Attorney General Pam Bondi from urging Medicare to pay for high-priced and unnecessary drug screening tests at the heart of Millennium’s massive scam, even as her own office and federal prosecutors pursued civil charges against the company.

Hours after The Post reported on the letter Friday afternoon, Bondi, who previously declined to be interviewed for this story, wrote in an email that staffers had written the letter, and that, “Knowing what I know now, The Palm Beach Post is correct that the letter should not have been sent.”

[PALM BEACH POST]

Gretchen Miller v. Washington Mutual Bank, f/k/a Washington Mutual Bank, FA (Fla. Dist. Ct. App. 2016)

View original: From the court   |   Our backup

 . . .

Gretchen Miller and her husband co-owned residential property as
tenants by the entirety. Insofar as the foreclosure judgment was only
against the wife but not the husband, and the husband was an
indispensable party, the certificate of title cannot issue. Accordingly, we
reverse the final judgment of foreclosure as well as the trial court’s order
denying Gretchen Miller’s objections to the judicial sale and issuance of
certificate of title.

Reversed.

WARNER and CONNER, JJ., concur.

 Amstone v. The Bank of New York Mellon (Fla. Dist. Ct. App. 2016)

View original: From the court   |   Our backup

. . .

Charles and Carolyn Amstone appeal the final summary judgment of

foreclosure entered against them and in favor of The Bank of New York Mellon. The

Amstones argue that the Bank failed to show that it had standing to foreclose and failed

to refute their affirmative defenses. They claim that summary judgment should have

been granted in their favor. We conclude that the Bank did prove standing but failed to

refute the Amstones’ affirmative defenses. Therefore, genuine issues of material fact

remained, summary judgment should not have been entered, and we must reverse for

further proceedings.

Portland Tribune-

Multnomah County has negotated a tentative $9 million settlement of a lawsuit alleging fraud against a national mortgage registry company.

Mortgage Electronic Registration Systems, Inc. was used by banks to bypass public recording requirements and fees, and has been linked to numerous foreclosures nationally. Other lawsuits against MERS have been filed around the country, with mixed results.

The settlement, released under Oregon Public Records Law, is scheduled to go before the board of county commissioners on Thursday.

[PORTLAND TRIBUNE]

SETTLEMENT BELOW

MERS

REUTERS –

U.S. Democratic presidential candidate Bernie Sanders, who has made reining in Wall Street a top campaign theme, will warn on Tuesday that financial-sector greed is “destroying the fabric of our nation” and detail his plan to break up big banks, his campaign said.

Sanders will deliver what his campaign is calling a “major policy address” on Wall Street reform in New York.

The U.S. senator from Vermont is challenging front-runner Hillary Clinton, a former U.S. senator from New York, and former Maryland Governor Martin O’Malley for the Democratic nomination to run for president in November 2016.

[REUTERS]

image: REUTERS/GRETCHEN ERTL

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

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

KENNETH ELSMAN,
Appellant,

v. Case No. 5D14-1753

HSBC BANK USA AS TRUSTEE FOR
MLMI 2006-AF1,
Appellee.
_____________________________________/

Opinion filed December 31, 2015

Appeal from the Circuit Court
for Flagler County,

Edward E. Hedstrom, Senior Judge.

Kenneth Elsman, Baldwin, New York, pro se.

Elizabeth T. Frau, of Ronald R Wolfe &
Associates, P.L., Tampa, for Appellee.

WALLIS, J.

Appellant, Kenneth Elsman, appeals pro se the trial court’s final judgment of
foreclosure in favor of Appellee, HSBC Bank USA, as Trustee for MLMI 2006-AF1
(“HSBC”). Elsman argues four issues on appeal, only one of which merits discussion.
Because we find that HSBC lacked standing to foreclose, we reverse.

On May 16, 2006, Elsman executed and delivered an InterestFirst note, a
mortgage, and a Second Home Rider to Quicken Loans, Inc. (“Quicken”), for a $168,000
loan. After Elsman defaulted on the loan, HSBC filed a two-count complaint on April 1,
2009, seeking to reestablish the note and foreclose the mortgage. HSBC attached to the
initial complaint copies of its debt collection letter, the original mortgage, the second home
rider, and the note.

On December 5, 2009, HSBC filed the original mortgage and the original note,
which, unlike the copy attached to the complaint, contained an undated special
endorsement from Quicken to “HSBC Bank USA, National Association, as Trustee for the
registered holders of the Merrill Lynch Mortgage Investor’s Inc., Mortgage Pass-Through
Certificates, Series 2006-AF1.”1 Throughout the course of both discovery and motion
practice, Elsman challenged HSBC’s standing to foreclose.

On March 4, 2014, the case proceeded to trial. The only witness to testify was
Peter Killinger, a “default representative” for PHH Mortgage Services (“PHH”), the loan
servicer for HSBC. During trial, HSBC offered the endorsed note and the mortgage into
evidence, without any testimony, as self-authenticating commercial paper. Elsman
objected to the admissibility of the newly endorsed note, arguing that it differed from the
unendorsed copy attached to the complaint. The trial court overruled Elsman’s objection
and admitted the endorsed note.2 The trial court sustained Elsman’s relevance objection
to the assignment from Quicken to HSBC, which postdated filing of the complaint by six
days. The trial court took judicial notice of a document referencing the pooling and
servicing agreement, which showed a September 1, 2006 creation date and referenced
the subject trust. Without objection, the trial court admitted PHH’s loan transfer history,
purporting to show a September 2006 transfer to Wells Fargo as master servicer for the
subject trust. Following the close of evidence, the parties provided written closing
arguments, and the trial court ultimately entered final judgment in favor of HSBC.

“A trial court’s decision as to whether a party has satisfied the standing requirement
is reviewed de novo.” Gorel v. Bank of New York Mellon, 165 So. 3d 44, 46 (Fla. 5th DCA
2015) (quoting Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011)); see
also Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 321 (Fla. 5th DCA 2013).

“A crucial element in any mortgage foreclosure proceeding is that the party seeking
foreclosure must demonstrate that it has standing to foreclose. The burden is on the party
seeking foreclosure to prove by substantial competent evidence that it has standing.”
Schmidt v. Deutsche Bank, 170 So. 3d 938, 940 (Fla. 5th DCA 2015) (citations omitted).
“[A] party’s standing is determined at the time the lawsuit was filed.” McLean v. JP Morgan
Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). This court has
previously determined:

Under section 673.3011, Florida Statutes (2013), a person
entitled to enforce the note and foreclose on a mortgage is the
holder of the note, a non-holder in possession of the note who
has the rights of a holder, or a person not in possession of the
note who is entitled to enforce under section 673.3091,
Florida Statutes.

Gorel, 165 So. 3d at 46. “Holder” is defined as “[t]he person in possession of a negotiable
instrument that is payable either to bearer or to an identified person that is the person in
possession.” § 671.201(21), Fla. Stat. (2009).

If an indorsement is made by the holder of an instrument,
whether payable to an identified person or payable to bearer,
and the indorsement identifies a person to whom it makes the
instrument payable, it is a “special indorsement.” When
specially indorsed, an instrument becomes payable to the
identified person and may be negotiated only by the
indorsement of that person.

§ 673.2051(1), Fla. Stat. (2009). “The endorsement must have occurred before the filing
of the complaint because it is axiomatic that standing must be shown as of the filing of
the complaint.” Schmidt, 170 So. 3d at 941 (quoting Eagles Master Ass’n v. Bank of Am.,
N.A., 40 Fla. L. Weekly D1510, D1510 (Fla. 5th DCA June 26, 2015)).

In Schmidt v. Deutsche Bank, our court reversed a final judgment of foreclosure
when the appellee-bank failed to prove its standing to foreclose at the time of filing. Id. at
942. Like the appellee-bank in Schmidt, HSBC attempted to establish standing after filing
a foreclosure complaint with a reestablishment of note count that was later dropped. See
id. at 939. HSBC’s case for standing has deficiencies similar to the bank’s in Schmidt.
HSBC filed, after the complaint, an undated endorsement. The trial court denied
admission of the note assignment because it postdated the complaint. This evidence
could not prove the note’s endorsement at the time of the filing of the complaint. In order
to prove standing, the endorsement must have occurred before filing of the complaint.
See id. at 941; McLean, 79 So. 3d at 173.

At trial, HSBC attempted to prove its standing as a holder with additional evidence.
Instead of a loan purchase agreement, as in Schmidt, 170 So. 3d at 940, HSBC relied
upon a loan transfer history and reference to the pooling and servicing agreement.
Testimony about these additional documents failed to show that HSBC became the holder
of the note through a special endorsement prior to filing the complaint. For these reasons,
HSBC’s evidence failed to establish its status as the holder of the note at the time of filing
the foreclosure complaint against Elsman, and thus failed to establish standing. See id.
at 942. Therefore, we reverse and remand for entry of an order of involuntary dismissal
of the action.

REVERSED and REMANDED with INSTRUCTIONS.

PALMER and COHEN, JJ., concur.

footnotes:
1 HSBC filed the original mortgage and note with the trial court in support of its
December 2, 2009 motion for summary judgment.

2 Elsman makes other arguments in this appeal concerning the admissibility of
other documents admitted during the trial as additional grounds for dismissal. Our
reversal on the issue of standing eliminates the need for any discussion of these alleged
evidentiary errors.