CHARLES R. GREEN, APPELLANT,
v.
JPMORGAN CHASE BANK, N.A., APPELLEE
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In a mortgage foreclosure case, the Florida Fifth District Court of Appeal reversed the trial court's grant of summary judgment for JPMorgan Chase Bank, holding that the Bank failed to establish standing to foreclose because it did not prove it held the note at the time suit was filed, and the trial court abused its discretion in denying the borrower's motion to add a RESPA counterclaim.
The court held that the trial court abused its discretion in denying Green's motion to add the RESPA counterclaim because the Bank failed to conclusively prove the counterclaim would be futile. Additionally, the Bank failed to establish standing because the undated blank indorsement did not prove the Bank held the note when suit was filed, the Purchase and Assumption Agreement was not authenticated, and the affidavit of amounts due was dated over two years after suit was filed.
[1] A trial court abuses its discretion by denying a motion to amend a pleading if it does not clearly appear that amendment would prejudice the opposing party, the privilege…
[2] Public policy favors the liberal granting of leave to amend pleadings to ensure causes are resolved on their merits.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.”
Establishes the legal standard for reviewing denial of motions to amend pleadings, emphasizing the strong presumption favoring amendment.
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Join FLexlaw to unlock all legal intelligenceCharles Green obtained a mortgage loan from Washington Mutual Bank (WaMu). JPMorgan Chase Bank acquired WaMu's assets through a Purchase and Assumptio…
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In this mortgage foreclosure matter, Charles R. Green appeals the final judgment of foreclosure entered in favor of JPMorgan Chase Bank, N.A. (Bank). Determining that the trial court erred in denying Green’s motion to add a counterclaim and in granting the Bank’s motion for summary judgment, we reverse.
The Bank filed a mortgage foreclosure complaint against Green. Green filed an answer raising multiple affirmative defenses. He later filed a motion seeking leave of court to file a counterclaim containing several counts. The Bank filed a motion for summary judgment. Both motions were heard together, after which the trial *1287court denied Green’s motion to add a counterclaim, granted the Bank’s motion for summary judgment, and entered a final judgment of foreclosure.
On appeal, Green argues that the trial court erred in denying his motion to add a counterclaim and in granting the Bank’s motion for summary judgment when the Bank had not refuted all of his affirmative defenses. We agree.
First, the court erred in denying Green’s motion to add a counterclaim. A trial court’s denial of a motion to add a counterclaim is reviewed for abuse of discretion. See Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So.3d 15, 16 (Fla. 5th DCA 2009). All doubts must be resolved in favor of allowing amendment, and “[p]ublic policy ... favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits.” Crown v. Chase Home Fin., 41 So.3d 978, 980 (Fla. 5th DCA 2010). Consequently, “[refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28 (Fla. 5th DCA 2004).
One count of Green’s proposed counterclaim, and the only count he addresses on appeal, alleged that the Bank violated the federal Real Estate Settlement Procedures Act (RESPA) by failing to notify him of a change in the servicer of his loan.1 Specifically, the count alleged the following. Green obtained a loan from Washington Mutual Bank, FA (WaMu). Through this transaction, WaMu may have acquired and retained a servicing interest in the loan. The Bank claimed to possess servicing rights in the loan. However, the Bank failed to notify Green that it was the new servicer within 30 days of assignment of servicing, as required by RESPA. As a result, the Bank denied Green a good-faith opportunity to determine who the new ser-vicer was, preventing him from making mortgage payments to avoid foreclosure.
The Bank responded that this count would be futile because Green could not state a valid claim, since he made eight monthly payments after servicing was transferred to the Bank. In support, the Bank relied on (1) a Purchase and Assumption Agreement showing that the Bank bought WaMu and its assets out of receivership on September 25, 2008; (2) a Customer Account Activity Statement showing that, after September 25, 2008, Green made at least 12 payments on the account; and (3) an affidavit of amounts due and owing. In addition, the Bank’s counsel represented to the court that the Bank regularly contacted Green by mail and phone to explore home retention options. In support, the Bank relied on (1) a letter from the Bank to Green, and (2) a Consolidated Notes Log describing various phone interactions between the Bank and Green after he defaulted on the loan. Green objected that the Bank presented no sworn testimony. Green represented that he was never aware that the Bank was involved until he was served with the complaint, and he denied that he had made any payments to the Bank.
The Bank failed to conclusively show that this count of Green’s proposed counterclaim would be futile. The only evidence submitted by the Bank was the affidavit of amounts due and owing.2 That *1288affidavit did not show specific payments by Green or the dates on which they were made. As such, the trial court erred in denying his motion as to this count.
Second, the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to refute Green’s affirmative defense of lack of standing. This court reviews de novo an order granting summary judgment. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). To establish standing to foreclose for purposes of summary judgment, the plaintiff must show that it acquired the right to enforce the note before it filed suit. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 253-54 (Fla. 2d DCA 2012); Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011).
The Bank s motion for summary judgment asserted that the Bank had standing as the holder of the note, as evidenced by its earlier filing of the original promissory note. The note contained an indorsement in blank by WaMu.3 On appeal, the Bank adds that its standing was supported by the Purchase and Assumption Agreement, which showed that the Bank bought all of WaMu’s assets before the Bank filed suit. The Bank also asserts that it filed an affidavit stating that it was the holder of the note.
Within the original note, the in-dorsement in blank did not establish that the Bank had the right to enforce the note when it filed suit, because the indorsement was undated. See Gonzalez, 95 So.3d 251. Moreover, the Bank’s standing also was not established by its act of filing of the original note. Although the filing of the original blank-indorsed note showed the Bank’s possession of (and thus right to enforce) it at the time of filing the note, that filing occurred more than a year after the Bank filed suit. As for the Purchase and Assumption Agreement, that Agreement was not authenticated for purposes of summary judgment. Finally, the affidavit of amounts due and owing did state that the Bank “holds the Note.” However, like the filing of the original note, the affidavit did not establish that the Bank held the note at the time it filed suit because the affidavit was dated more than two years later.
REVERSED and REMANDED.
ORFINGER, C.J., and BERGER, J., concur.
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Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013)…standing by submitting the original note endorsed in blank. See Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d 224, 225-26 (Fla. 2d DCA 2012); Everhome Mortg. Co. v. Janssen, 100 So. 3d 1239, 1240 (Fla. 2d DCA 2012); Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013). As with the assignment, however, Wells Fargo did not submit the original note until several months after it had filed the complaint. To establish standing as the holder of a note endorsed in blank, a party must be in posse…
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Daniel and Nancy Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014)…the named payee, possession of the original note endorsed in favor of the plaintiff or in blank (which makes it bearer paper). See Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310-11 (Fla. 2d DCA 2013) (citing Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013)); Lindsey, 139 So. 3d at 906 (citing Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 213 (Fla. 5th DCA 2011)). If the foreclosure plaintiff is not the original, named payee, the plaintiff must establish that the note was endor…
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Nationstar Mortg. LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017)…Bank of Am., N.A., 189 So. 3d 187, 190 (Fla. 2d DCA 2016) (en banc); Rincon v. Bank of Am., N.A., 206 So. 3d 793, 795 (Fla. 3d DCA 2016); Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014); Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013). Thus, where the foreclosing plaintiff does not establish its right to enforce the mortgage note at the time of the filing of the suit, there is no ability to enforce the terms of the note, including the provision regarding…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)
- Crown v. Chase Home Fin., 41 So. 3d 978 (Fla. 5th DCA 2010)
- Sonny BOY, L.L.C. v. Bhagwan Asnani, 879 So. 2d 25 (Fla. 5th DCA 2004)
- Cedar Mountain Ests., LLC v. Loan ONE, LLC, 4 So. 3d 15 (Fla. 5th DCA 2009)
- Gonzalez v. Deutsche Bank Nat'l Tr. Co. as Indenture Tr. for Am. Home Mortg. Inv. Tr. 2006-1, 95 So. 3d 251 (Fla. 2d DCA 2012)
- Ciolli v. City OF Palm BAY, 59 So. 3d 295 (Fla. 5th DCA 2011)