American Home Mortgage Servicing, Inc. v. Bednarek
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IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
February 26, 2014
AMERICAN HOME MORTGAGE
SERVICING, INC.,
Appellant,
)
)
)
v.
)
)
LUCY BEDNAREK,
)
)
Appellee.
)
________________________________ )
Case No. 2D12-2099
BY ORDER OF THE COURT:
Appellant's motion for rehearing is granted. The prior opinion dated October 25,
2013, is withdrawn, and the attached opinion is issued in its place. No further motions
for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES BIRKHOLD, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
AMERICAN HOME MORTGAGE
SERVICING, INC.,
)
)
)
Appellant,
)
)
v.
)
)
LUCY BEDNAREK,
)
)
Appellee.
)
________________________________ )
Case No.
2D12-2099
Opinion filed February 26, 2014.
Appeal from the Circuit Court for
Pinellas County; Pamela A.M.
Campbell, Judge.
Albert Zakarian and Aaron W. Saoud of
the Law Office of Daniel C. Consuegra,
Tampa, for Appellant.
Matthew D. Weidner and Michael P.
Fuino of Matthew D. Weidner, P.A.,
St. Petersburg, for Appellee.
KELLY, Judge.
American Home Mortgage Servicing, Inc. (AHMSI),1 appeals a final order
dismissing its foreclosure action against Lucy Bednarek for lack of standing. Because
The original plaintiff in this foreclosure action was American Home
Mortgage Servicing, Inc., a Maryland corporation (AHMSI-Maryland). The appellant,
1
we conclude the trial judge erred in finding that AHMSI did not establish its standing to
foreclose on the mortgage when it filed the complaint, we reverse.
On May 31, 2005, Ms. Bednarek executed a note and mortgage in favor of
American Brokers Conduit for the purchase of real property. Thereafter, the loan was
sold to Deutsche Bank. On March 30, 2006, American Brokers Conduit assigned the
mortgage to the bank's servicing agent, AHMSI-Maryland. In September 2007, AHMSIMaryland filed a complaint for foreclosure, alleging it was the owner and holder of the
underlying promissory note. With the complaint and the amended complaint, AHMSIMaryland filed copies of the mortgage, the promissory note showing a blank
endorsement, and the 2006 assignment of mortgage. In April 2008, AHMSI purchased
AHMSI-Maryland, acquiring the company's servicing rights. In 2009, AHMSI filed the
original note and mortgage with the trial court.
At the nonjury trial, AHMSI introduced the original note and mortgage into
evidence. AHMSI also presented the testimony of its foreclosure special assets
specialist, Krystal Kearse, who traced the history of the loan from its inception in 2005
when the loan was being serviced by its predecessor, AHMSI-Maryland, until AHMSI
received the documents to proceed with foreclosure proceedings. Ms. Kearse testified
that in purchasing AHMSI-Maryland, AHMSI acquired the servicing rights to all of
AHMSI-Maryland's loans.
At the close of testimony, counsel for Ms. Bednarek made an oral motion
to involuntarily dismiss the action, arguing AHMSI had no standing to foreclose because
it was not the original plaintiff and not the owner and holder of the note. Relying on
American Home Mortgage Servicing, Inc., a Delaware corporation (AHMSI), purchased
AHMSI-Maryland during the pendency of the action.
-2-
McLean v. JP Morgan Chase Bank National Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA
2012), the trial court granted the motion on the ground AHMSI had failed to prove it was
the owner of the note and mortgage.
A party seeking foreclosure must establish that it had standing to foreclose
at the time it filed the complaint. McLean, 79 So. 3d at 173. A foreclosure plaintiff has
standing if it owns and holds the note at the time suit is filed. Id. A plaintiff may also
establish standing to foreclose by submitting evidence of a special endorsement on the
note in favor of the plaintiff or a blank endorsement, an assignment from the payee to
the plaintiff, or an affidavit of ownership. Id. at 174.
Because a promissory note is a negotiable instrument and
because a mortgage provides the security for the repayment
of the note, the person having standing to foreclose a note
secured by a mortgage may be either the holder of the note
or a nonholder in possession of the note who has the rights
of a holder.
Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013) (quoting Mazine v. M & I
Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011)).
Here, because the note at issue is endorsed in blank, and because
AHMSI possessed the original note, its standing to foreclose is established from its
status as the note holder. See id.; 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."); Mortg. Elec. Registration Sys., Inc. v. Azize,
965 So. 2d 151, 153 (Fla. 2d DCA 2007) ("The holder of a note has standing to seek
enforcement of the note."). Accordingly, we reverse the involuntary dismissal of
AHMSI's foreclosure action and remand for further proceedings.
-3-
Reversed and remanded.
CRENSHAW and BLACK, JJ., Concur.
-4-
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