BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A., AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR RAMP 2003RS9, APPELLANT,
v.
HARLAN S. GINSBERG, UNKNOWN HEIRS, BENEFICIARIES, DEVISEES AND ALL OTHER PARTIES CLAIMING AN INTEREST BY, THROUGH, UNDER OF THE ESTATE OF FRANCES L. GINSBERG A/K/A FRANCES LILA GINSBERG A/K/A FRANCES LILLIAN GINSBERG, DECEASED, APPELLEES

Fla. 4th DCA | 2017-07-05
No. 4D16-3168
Damoorgian and Ciklin, JJ., concur.
221 So. 3d 1196 Florida District Court of Appeal, Fourth District (2017) Positive Treatment
Cited by 5 cases

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Synopsis

The Bank of New York Mellon Trust Company appealed a summary judgment ruling that dismissed its foreclosure complaint based on a discrepancy between the trust name in the complaint and the trust name in the special endorsement on the promissory note. The Fourth District Court of Appeal reversed, holding that a plaintiff need not identify the specific trust to establish standing to foreclose if it possesses the note with a special endorsement in its favor.


Holding

A plaintiff has standing to foreclose if it possesses the promissory note with a special endorsement in its favor at the time the complaint is filed, regardless of whether the trust name in the complaint matches the trust name in the special endorsement. To establish standing, a plaintiff need not identify or prove the specific trust on whose behalf it acts.


Headnotes

[1] A plaintiff has standing to foreclose if, at the time the complaint is filed, it possesses the promissory note and the note bears either a special endorsement in favor of…

[2] A plaintiff is not required to identify or prove the trust on whose behalf the plaintiff acts to establish standing in a foreclosure action.

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Key Quotes

“A plaintiff has standing to foreclose if, at the time the complaint is filed, it possesses the promissory note and the note bears either a special endorsement in favor of the plaintiff or a blank endorsement.”

Establishes the legal test for standing to foreclose in Florida.

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Facts & Procedural History

The Bank filed a foreclosure complaint identifying itself as trustee of the 'Ramp 2003RS9' trust. The promissory note at issue bore a special endorsem…

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Opinion of the Court
Hanzman, Michael A., Associate Judge.

Hanzman, Michael A., Associate Judge.

Appellant, the Bank of New York Mellon Trust Company, National Association f/k/a The Bank of New York Trust Company, N.A., as Successor to JPMorgan Chase Bank, N.A., as Trustee for Ramp 2003RS9 (the “Bank”), seeks reversal of summary judgment in favor of appellee, Harlan Ginsberg (“Ginsberg”). The Bank asserts that the disparity between the name of the trust in the complaint and the name of the trust in the special endorsement to the promissory note did not create a standing defect. We agree and reverse.

The Bank alleged in its complaint that it was trustee of the “Ramp 2003RS9” trust. The Bank subsequently filed a copy of the promissory note. The note had a special *1197endorsement in favor of “The Bank of New York Mellon Trust Company, National Association F/K/A The Bank of New York Trust Company, N.A. as Successor to JPMorgan Chase Bank, as Trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2003-RS9.” Although the Bank moved to correct the scrivener’s error in the complaint, the trial court denied the Bank’s motion. Ginsberg then moved for summary judgment, arguing that the Bank “named the wrong trust” in its complaint. The only evidence Ginsberg offered to support the motion was the trial court’s denial of the Bank’s motion to correct the scrivener’s error. The Bank did not offer evidence to oppose summary judgment. The trial court granted summary judgment and the Bank appealed.

We review the trial court’s grant of summary judgment de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

A plaintiff has standing to foreclose if, at the time the complaint is filed, it possesses the promissory note and the note bears either a special endorsement in favor of the plaintiff or a blank endorsement. McLean v. JP Morgan Chase Bank Natl. Assoc., 79 So.3d 170, 173 (Fla. 4th DCA 2012). Here, the special endorsement on the note is in favor of the Bank, and Ginsberg offered no evidence to show the Bank lacked possession of the note at the time it filed the complaint. To prove standing, a plaintiff is not required to identify or prove the trust on whose behalf the plaintiff acts. See id. Thus, in this case, the fact that the trust identified in the complaint is somewhat different from the trust identified in the special endorsement does not create a defect in standing. See also Fla. R. Civ. P. 1.120(a) (“It is not necessary to aver the capacity of a party to sue or be sued ... except to the extent required to show the jurisdiction of the court.”).

Additionally, the Bank had no burden to come forward with evidence to oppose Ginsberg’s motion for summary judgment. Ginsberg did not “tender[ ] competent evidence in support of his motion” for summary judgment. Wells Fargo Bank, N.A. v. Bilecki, 192 So.3d 559, 561 (Fla. 4th DCA 2016) (quoting Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006)). Thus, the Bank was not obligated “to come forward with opposing evidence.” See id.

We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

Damoorgian and Ciklin, JJ., concur.


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Citator

Cited By

  • Deutsche Bank Tr. Co. Americas v. Harris, 264 So. 3d 186 (Fla. 4th DCA 2019)
    …nding. See also Fla. R. Civ. P. 1.120(a) (“It is not necessary to aver the capacity of a party to sue or be sued . . . except to the extent required to show the jurisdiction of the court.”). Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n v. Ginsberg, 221 So. 3d 1196, 1197 (Fla. 4th DCA 2017), rev. denied sub nom. Ginsberg v. Bank of N.Y. Mellon Tr. Co., N.A., No. SC17-1468, 2018 WL 503421 (Fla. Jan. 22, 2018) (emphasis added). Notably, the borrower’s reliance on our opinion in Bolous v. U.S. Bank National…
  • Wells Fargo Bank v. Stephenson (Fla. 5th DCA 2019)
    …appeal, was not relevant to this allegation, nor were the slight variations in Wells Fargo’s name. See Wilmington Sav. Fund Soc’y, FSB, v. Louissaint, 212 So. 3d 473, 475–46 (Fla. 5th DCA 2017); Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n v. Ginsberg, 221 So. 3d 1196, 1197 (Fla. 4th DCA 2017). 3 We agree with our sister court that to prove standing, a plaintiff is not required to identify or prove the trust on whose behalf the plaintiff acts. Ginsberg, 221 So. 3d at 1197. The fact that the trust identified in t…
  • Wells Fargo Bank v. Cook (Fla. 2d DCA 2019)

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