Certified Forensic Loan Auditors, LLC

 
  Upcoming Classes

Search CFLA's Article Archive:

Calvo v. U.S. Bank NA | FL 4dca

U.S. Bank did not prove that it was the holder when this action was commenced, and we find that U.S. Bank did not establish its standing to foreclose when the complaint was filed

stopforeclosurefraud.com | December 18, 2015

Our review of the record reveals that the last page of the original note differs from the previously-filed copies. The borrower’s signature is not the same, and the indorsements are in reverse order and signed by different people. Because the appellants do not raise this issue of authentication, it is not considered by this court as grounds for reversal.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

SELVA ADRIANA CALVO and MARCOS FABIAN CALVO,
Appellants,

v.

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-BC-1,
Appellee.

No. 4D14-1424
[December 16, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Cynthia G. Imperato, Judge; L.T. Case No. 10-21967 CA 06 11.
Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for appellants.
Donna L. Eng, Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellee.

STEVENSON, J.

Selva and Marcos Calvo appeal a final judgment of foreclosure. We find the trial court erred because U.S. Bank National Association did not establish its standing to foreclose when the complaint was filed. We thus reverse.
The original lender in this case was Aegis Funding Corporation. U.S. Bank filed this foreclosure action on May 24, 2010, attaching copies of the mortgage and note to the complaint. The note attached to the complaint did not include any indorsements.

More than three years later, counsel for U.S. Bank filed a document entitled “Certification of Possession of Original Promissory Note.” The copy of the note attached to the certification included two stamped indorsements including an indorsement in blank. At trial, U.S. Bank filed the original note, also bearing an indorsement in blank.1

U.S. Bank’s only witness was an employee of the servicer. She testified that counsel for U.S. Bank had possession of the original note when the complaint was filed. She did not testify as to when the indorsements were placed on the note, and she did not know whether the original note the attorneys had in their possession when suit was filed included the indorsements.

If a note is indorsed in blank, it is payable to the bearer and is “negotiated by transfer of possession alone.” § 673.2051(2), Fla. Stat. (2014) (emphasis added). Where the plaintiff’s status as holder relies on a blank indorsement, the plaintiff must establish that it had possession of the original note, indorsed in blank, when the complaint was filed. See Snyder v. JP Morgan Chase Bank, Nat’l Ass’n, 169 So. 3d 1270, 1273 (Fla. 4th DCA 2015); McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012).

While it is not necessary for the plaintiff to prove the exact date the indorsement was placed on the note, the plaintiff must present competent, substantial evidence that the indorsement was placed on the note before suit was filed. “We have said before, and apparently need say again: if an indorsement is undated and appears for the first time after the complaint is filed, some evidence must be introduced that will support a finding that the indorsement was made prior to the complaint’s filing.” Jelic v. BAC Home Loans Servicing, LP, 40 Fla. L. Weekly D2476, D2476 (Fla. 4th DCA Nov. 4, 2015).

At bar, U.S. Bank’s witness was testifying from screenshots. The screenshots set forth the date the note changed hands, but did not set forth whether the note that was changing hands included the blank indorsement. U.S. Bank thus failed to establish its possession of the indorsed note on the requisite date.

Accordingly, U.S. Bank did not prove that it was the holder when this action was commenced, and we find that U.S. Bank did not establish its standing to foreclose when the complaint was filed. We thus reverse the final judgment of foreclosure and remand for entry of an order of involuntary dismissal of the action. See Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950, 952 (Fla. 4th DCA 2014).

Reversed and remanded.

DAMOORGIAN and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

(1) Our review of the record reveals that the last page of the original note differs from the previously-filed copies. The borrower’s signature is not the same, and the indorsements are in reverse order and signed by different people. Because the appellants do not raise this issue of authentication, it is not considered by this court as grounds for reversal.

 

Back to December 2015 Archive

 

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

SEE BELOW- http://www.certifiedforensicloanauditors.com

Call us toll free at 888-758-2352

Bookmark and Share
spacer
Facebook Like us on Facebook
Twitter Follow us on Twitter
YouTube View our YouTube Videos
LinkedIn Connect to us on Linkedin
 
BBB Logo

 

spacer

Contact us or view our Sample Documents & Audits by completing the form below.

  • Reload
  • Should be Empty:

 

DVD Sets Only $99

 

FREE Mortgage Fraud Analysis

 

Order Cutting-Edge Services Now

 

Quiet Title Packages from Licensed Attorneys

 

Affiliate Services

 

CFLA Sponsored Attorney Links

 

Take-Home Education Package

 

ALB Law Firm

 

Advocate Legal

 

The True News Network

 

Sutton Law Firm, P.L.L.C.

 

Rubenstein Business Law

 

Atighechi Law Group

 

Scunziano & Associates

 

Get Certified to Perform Mortgage Securitization Audits

 

CFLA Training Academy

 

Expert Witness Services

 

Cutting Edge Expert Securitization Reports

 

CFLA Credit Cards

 

Breaking News

 

Letters to the Editor

 

CFLA Weekly Newsletters

 

Code of Ethics

 

Testimonials

 

Instructional Videos

 

Job Opportunities

 

License Opportunities

 

MARS Rule

 

Product Samples

 

Resource Links

 

Servicer Information

 

Foreclosure Laws

 

REST Report

 

Quiet Title Packages from Licensed Attorneys

 

Advertise on CFLA

 

Advertising Space: Mortgage Securitization, Quiet Title

 

Certified Forensic Loan Auditors, LLC
13101 West Washington Blvd.
Suite 444
Los Angeles, CA 90066

Phone: 832-932-3951
Toll Free: 888-758-CFLA (2352)
Mobile Users: CLICK TO CALL
info@certifiedforensicloanauditors.com

   
 
CFLA IS NOT A LAW FIRM AND DOES NOT PROVIDE ANY LEGAL ADVICE. CFLA DOES NOT OFFER FORECLOSURE CONSULTING OR FORECLOSURE RELIEF
SERVICES. CFLA DOES NOT OFFER OR ASSIST WITH ANY LOAN MODIFICATION SERVICE. CFLA ALWAYS RECOMMENDS THAT CLIENTS RETAIN COMPETENT COUNSEL IN THEIR RESPECTIVE JURISDICTION. CFLA HAS A FREE PROGRAM TO REFER CFLA CLIENTS TO LAW FIRMS IN NEARLY EVERY STATE AND CFLA
DOES NOT CHARGE OR OBTAIN REFERRALS FEES FOR THESE SERVICES. SERVICES NOT OFFERED TO RESIDENTS OF THE STATE OF NEVADA.

 
Home About Us Privacy Policy Terms of Service Disclaimer SERVICES Careers Contact Us
 
COPYRIGHT © 2007-2016 Certified Forensic Loan Auditors ™ All rights reserved