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To establish standing by merger in a foreclosure action, the surviving entity must prove that it acquired all of the absorbed entity’s assets, including the note and mortgage by virtue of the merger. On February 2, 2018, the Fifth District Court of Appeal released the opinion of *Fielding v. PNC Bank Nat'l Ass'n, No. 5D16-440, 2018 WL 663820, (Fla. Dist. Ct. App. Feb. 2, 2018), which held that the “banks must establish and explain the relationship between the entities in the entire chain of mergers in order to establish standing.”. In this instant case, the borrower executed a note and mortgage agreement with Fidelity Federal Bank and Trust (“Original Lender”), and then the original lender converted to a national bank, assumed the name Fidelity Bank, National Association, and then merged into National City Bank (“NCB”). Thereafter, National City Mortgage “(NCM”) filed a foreclosure complaint. Id. National City Bank merged with PNC Bank National Association, in which National City Mortgage (Plaintiff) moved to substitute PNC Bank National Association as Plaintiff by virtue of the merger.
Standing and Substituted Party Plaintiff under Fla. R. Civ. Pro. 1.260(c)
A substituted Plaintiff acquires the standing of the transferor original Plaintiff. On January 10, 2018, the decision of *Spicer v. Ocwen Loan Servicing,LLC, No. 4D16-2335, 2018 WL 354555, (Fla. Dist. Ct. App. Jan. 10, 2018), was released in which the Fourth District Court of Appeal held and affirmed the lower court’s ruling that pursuant to Fla. R. Civ. Pro. 1.260, “a transferee substituted as Plaintiff acquires the standing of the transferor original Plaintiff.” In which, “the acquired standing, coupled with the presentation of the original note, indorsed in blank, is sufficient to allow the substituted Plaintiff to foreclose.“ While the Appellant’s acknowledged that the original lender had standing to initiate the foreclosure action, they argued that the substituted Plaintiff did not establish standing because the original note had been filed with the clerk of court long before it was purportedly transferred to the substituted Plaintiff. Id. The Fourth District Court of Appeal, disagreed. In reaching this holding, the Fourth District Court of Appeal, relied on the Motion to Substitute Party Plaintiff, which did specifically reference the transferring of the note in the motion, unlike in Geweye v. Ventures Trust 2013-I-H-R, 189 So.3d 231, 233 (Fla. 2d DCA 2016), in which the original Plaintiff filed a foreclosure complaint and later filed the original note indorsed in blank, and later based upon an assignment that referenced only the mortgage, the original Plaintiff filed a motion to substitute party plaintiff, with only a reference to the transfer of the Mortgage. Mitch Berry, Esq. Promoted to PLG Arkansas Supervising Attorney We are pleased to announce the promotion of Mitch Berry to Supervising Attorney – Little Rock, Arkansas. He will report directly to the firm’s Managing Attorney, Laura Conrad; with a dotted line to theBankruptcy Managing Attorney and will work closely with the Director of Operations. Mitch received his undergraduate degree in Advertising & Public Relations from TCU and received his Juris Doctorate from University of Arkansas Little Rock. Mitch was previously a member of the Dyke & Winzerling, PLC team before joining the Padgett Law Group, September, 2017, as Sr. Attorney. Mitch played a vital role during the Arkansas acquisition and his promotion recognizes the contributions made to the Padgett Law Group during his initial tenure with the firm. We are excited about his new role and the wealth of extensive experience he brings in the practice area of Creditor’s Rights Law including foreclosure, bankruptcy, title and litigation. Please join us in congratulating Mitch as he takes on his new role as leader of the Little Rock operations and staff. Patti Marchbanks Promoted to Supervisor We are pleased to announce the promotion of Patti Marchbanks to Supervising Paralegal - Tennessee. Patti joined the Padgett Law Group in April of 2017 as Legal Assistant, during which time she proved herself to be a committed firm advocate. Patti came to the Padgett Law Group with an extensive background in multiple areas of the mortgage default industry including bankruptcy, foreclosure and eviction. She is known for her ability to be a team player and overcome problems during challenging times and has always shown initiative in the performance of her responsibilities. We look forward to Patti’s ability to achieve continued success in her new role as Supervisor and are excited to see her motivate her team to success. Cathy Wallis Promoted to Supervisor
The Padgett Law Group is pleased to announce the promotion of Cathy Wallis to Supervising Paralegal - Arkansas, effective 3/1/2018. During her eleven-year tenure with Dyke & Winzerling, PLC, Cathy provided extensive expertise and experience working judicial, litigation, bankruptcy, replevin, and eviction files. During the DW acquisition, Cathy chose to join PLG in September 2017 as legal assistant and continued to perform at exceptional levels. Cathy attended the University of Arkansas at Little Rock before working for several companies in leadership roles which, along with her dedication and commitment in the default services world, has positioned her for additional responsibilities and a well-deserved promotion with the Padgett Law Group. We are excited for Cathy as she assumes her new responsibilities as Supervising Paralegal – Arkansas and for the dedicated team already in place. |
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Padgett Law Group and Padgett Law Group EP are D/B/As of Timothy D. Padgett, P.A. Timothy D. Padgett, P.A.'s practice areas include creditors' rights, estate planning and probate, real estate transactions and litigation. Not all practices or services are available in all states in which Timothy D. Padgett, P.A. practices.
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