MATTHEW BARRY AND MARIBETH RUFF, APPELLANTS,
v.
VANTIUM CAPITAL, INC., AS SUCCESSOR TO WELLS FARGO BANK, N.A., APPELLEE

Fla. 2d DCA | 2015-09-04
No. 2D14-3200
KELLY and WALLACE, JJ., Concur.
198 So. 3d 43 Florida District Court of Appeal, Second District (2015) Positive Treatment
Cited by 2 cases

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Synopsis

Vantium Capital sought to substitute itself for Wells Fargo Bank to pursue a deficiency judgment against homeowners Barry and Ruff after a foreclosure sale. The Florida appellate court reversed the summary judgment in Vantium's favor, holding that Vantium failed to establish standing because it did not demonstrate that FNMA (which allegedly guaranteed the note) had succeeded to Wells Fargo's right to seek a deficiency judgment.


Holding

Vantium did not establish standing to seek the deficiency judgment because there was no evidence that FNMA had succeeded to Wells Fargo's right to pursue a deficiency, and therefore Vantium's power of attorney from FNMA did not confer standing to pursue the suit against Barry and Ruff.


Headnotes

[1] A party seeking to pursue a deficiency judgment must establish its standing to do so.

[2] A party claiming authority to pursue a deficiency judgment based on a power of attorney must demonstrate that the grantor of the power had the right to seek such a judgme…

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Key Quotes

“There simply was no evidence establishing that FNMA had succeeded to Wells Fargo's right to seek a deficiency judgment. Accordingly, Vantium's power of attorney from FNMA did not confer standing to pursue a suit against Barry and Ruff.”

Establishes the core holding that Vantium lacked standing because it failed to prove FNMA had succeeded to Wells Fargo's rights.

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Facts & Procedural History

Wells Fargo Bank obtained a final judgment of foreclosure against Matthew Barry and Maribeth Ruff in April 2010 and purchased their property at the fo…

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Opinion of the Court
NORTHCUTT, Judge.

NORTHCUTT, Judge.

Wells Fargo Bank, N.A., obtained a final judgment of foreclosure against Matthew Barry and Maribeth Ruff in April 2010, and it purchased their property at the foreclosure sale. The circuit court retained jurisdiction to enter a deficiency judgment but Wells Fargo never sought one. In June 2013, Vantium Capital, Inc., moved to substitute itself for Wells Fargo in order to pursue a deficiency action against Barry and Ruff. The court granted the substitution1 and eventually entered a final summary judgment in favor of Vanti-um. We reverse because Vantium did not establish its standing to seek the judgment.

Vantium’s unsworn motion to substitute asserted that the Federal National Mortgage Association guaranteed Barry’s and Ruffs note. Vantium alleged that it had entered into a collection agreement with FNMA and was authorized to pursue and collect deficiency judgments on FNMA’s behalf. It attached to the motion a limited power of attorney from FNMA. The extent of Vantium’s authority thereunder to pursue a deficiency on behalf of FNMA in a court of law is somewhat unclear. But we do not need to parse the power of attorney for this purpose because the record does not show that FNMA, the grant- or of the power, had the right to seek a deficiency.

The original note and mortgage were filed with the court in Wells Fargo’s foreclosure action. The note was payable to DHI Mortgage Company LTD, but it was endorsed to Wells Fargo. Neither the note, the mortgage securing it, nor the final judgment mentioned that FNMA guaranteed the note or had an interest in it. Certainly Wells Fargo could have assigned its right to pursue a deficiency to FNMA, but Vantium offered no evidence that it had done so. Even if we accept the allegation that FNMA guaranteed the note, it would have needed an assignment of the judgment, or some other evidence that the asset had been transferred, to pursue a deficiency. See National Enters., Inc. v. Martin, 679 So.2d 331, 332 (Fla. 4th DCA 1996) (noting that an involuntary dismissal of an action seeking a delinquency after a foreclosure was properly entered where the plaintiff failed to show it was the owner of the asset by presenting an assignment or the transfer or sale of the asset from the entity that obtained the final judgment of foreclosure).

There simply was no evidence establishing that FNMA had succeeded to Wells Fargo’s right to seek a deficiency judgment. Accordingly, Vantium’s power of attorney from FNMA did not confer standing to pursue a suit against Barry and Ruff. Cf Creadon v. U.S. Bank, N.A., 166 So.3d 962 (Fla. 2d DCA 2016) (discussing the bank’s failure of proof on its motion to substitute as plaintiff in the foreclosure action); Gee v. U.S. Bank Nat’l Ass’n, *4572 So.3d 211 (Fla. 5th DCA 2011) (addressing bank’s failure to prove the chain of assignments that would establish its right to seek foreclosure of a mortgage).

We reverse the summary judgment entered in favor of Vantium Capital,' Inc;

KELLY and WALLACE, JJ., Concur.


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Citator

Cited By

  • Aluia v. Dyck-O'Neal, Inc., 205 So. 3d 768 (Fla. 2d DCA 2016)
    …deficiency may be substituted as a party plaintiff to proceed with a deficiency claim in the foreclosure lawsuit. See One S. Ocean Drive 2000, Ltd. v. One Ocean Boca, LLC, 182 So. 3d 872, 874 (Fla. 4th DCA 2016); cf. Barry v. Vantium Capital, Inc., 198 So. 3d 43, 40 Fla. L. Weekly D2075, 2015 WL 5166282 (Fla. 2d DCA Sept. 4, 2015); SVI Capital, LLC v. Coon, 182 So. 3d 932 (Fla. 4th DCA 2016). .We are cognizant of federal district court opinions finding either that “the doctrine of merger does not apply to…

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