“The fact that the trust identified in the complaint is somewhat different from the trust identified in the mortgage assignment does not create a defect in standing as a holder of the note that can be resolved on a motion to dismiss.”
On August 2, 2019, the Fifth District Court of Appeal in Wells Fargo Bank, N.A., as Trustee for the Mastr Asset Backed Securities Trust 2007-Ncw Mortgage Pass-Through Certificates Series 2007-NCW v. Stephenson, Case No. 5D18-733, 44 Fla. L. Weekly D2001a (Fla. 5thDCA August 2, 2019), held that as the Plaintiff had filed the Complaint with a copy of a note with a blank endorsement, and had alleged that it was the holder of the note, and had filed a certificate of possession with a copy of the blank endorsed note, that the discrepancy between the Plaintiff name and the assignment of mortgage did not create a defect in standing.
“Assignment of Mortgage that assigned the Note that was dated three years prior to the filing of the Complaint, that was attached to the Complaint at the time of filing was sufficient to establish standing.”
On July 26, 2019, the Second District Court of Appeal in Wells Fargo Bank, N.A., as Trustee for the Certificate Holders of Bank of America Mortgage 2007-1 Trust, Mortgage Pass-Through Certificates, Series 2007-1, Appellant, v. Cook, Case No. 2D17-3913, 44 Fla. L. Weekly D1921b, (Fla. 2nd DCA July 26, 2019), held that “the Plaintiff had standing to bring the action, as the Plaintiff had attached an assignment of mortgage that transferred the note that was dated almost three years prior to filing suit with the Complaint, and with the Plaintiff later on introducing the original note with a blank endorsement from the original lender to Plaintiff.” This case is not yet final.
Contact Marissa Yaker, Esq. here.
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Fourth District Court of Appeal Affirms the Denial of Motion for Fees when Cases was Involuntary Dismissed for Lack of Standing.
On June 5, 2019, the Fourth District Court of Appeal in Fassy v. The Bank of New York Mellon, Case No. 4D18-1548, 44 Fla. L. Weekly D1425a (Fla. 4th DCA June 5, 2019) affirmed the denial of the motion for attorney fees, but reversed the denial of the motion for costs. At the trial court level, the case proceed to a nonjury trial, after the Bank presented its evidence, the Borrower moved for involuntary dismissal, arguing lack of standing at the time suit was filed. The trial court entered an order granting the involuntary dismissal, in which the Borrower then moved to tax costs and fees. The trial court entered an order denying both the motion for fees and motion for costs. The Fourth District Court of Appeal affirmed the denial of the fee motion without discussion.
The Fourth District Court of Appeal reversed the order denying the motion for costs pursuant to Fla. R. Civ. Pro. 1.420(d) as it clearly provides that costs should be awarded to the party.
Contact Marissa Yaker, Esq. here.
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