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Standing at Inception: A Payment History from a Servicer Does Not Prove Standing

Foreclosure Defense November 3, 2014

An excerpt from one of our latest trial wins:

MR. ROSEN:  Judge, at this time, we would like to make a motion pursuant to 1.420, Rules of Civil Procedure.  A motion for involuntary dismissal is the appropriate mechanism at the close of a plaintiff’s case in a nonjury trial. A motion for involuntary dismissal tests not the weight of the evidence, but rather whether the plaintiff has met its prima facie burden.  The prima facie burden in a foreclosure case is four-pronged under the Ernest v Carter case. One, that there be a contractual relationship between the parties. Two, that there be a breach of that contractual relationship.  Three, acceleration of a debt, proper acceleration. And lastly, damages to satisfy the mind of a prudent, impartial person.  As to standing, Judge, and the contractual relationship. This action began with an allegation that the plaintiff was the servicer for the owner acting on behalf of the owner with the authority to do so, and is the present and designated holder of the note. They are holding the note for someone else. The designated holder for someone else and with authority, quote, unquote, to pursue the present action. There has been no evidence, whatsoever, before the Court to validate that allegation in their complaint. Rather, what’s before the Court is that there was a complaint filed with a note made payable to another party with no endorsement, that there is now a note, for the first time, never been filed before with the Court, a note endorsed in blank, from this third party. Standing is not today, although today it needs to be as well.  It’s throughout the case.  And the Sentinel case in foreclosure — really, the Sentinel case is not in foreclosure case, it’s a PIP case, if I’m not mistaken, the Progressive v McGrath case, which says standing at inception is what’s required, and it’s incurable. Numerous other cases have come down from the 4th, as well, to indicate that this law is unshakable. At this time, that is what you have to show standing at inception, as well as standing throughout the litigation.  There has been no documentary evidence, whatsoever, to show who held the note at the time the suit was filed. In fact, just the opposite.  They say the note was lost in their complaint.  And as the Court knows, there are these surprising requests for admissions filed by the current plaintiff’s firm admitting that they didn’t have possession of the note at the time the suit was filed. It’s number five, admitting that the copy attached to the complaint is a true and correct copy.  So those are, as we’ve discussed, uncontrovertible, under Erhardt. Those are judicial admissions, different than evidentiary ones.  And even if they were evidentiary, there has been no evidence to controvert them. And the only evidence that we have are two assignments of mortgage that don’t reference the note, and both are dated two years after suit is filed. Two years, referencing a transfer from the original lender of the mortgage to the original plaintiff in this case, two years post-suit being filed. What is also of interest into considering the contractual relationship, the complaint in this case references that they are suing on a note dated May 11th, 2008, and a mortgage recorded in 2008. The note that’s before you is not from 2008, nor is the mortgage.  They are from 2006.  I encourage the Court to take a look at both the complaint and the note. In a light most favorable to the plaintiff, which is the standard in a motion for involuntary dismissal, that may very well be a mistake, but that’s their allegations in conjunction with the request for admissions and the testimony before the Court.  I think it’s as clear as it can possibly be that there’s no standing and inception…

THE COURT:  Response?

MR. SILEVITCH:  Yes, Your Honor.  Regarding standing and standing at the inception, my witness testified to being the holder of the note, to —

THE COURT:  Wait.  What is the testimony about being the holder of the note?

MR. SILEVITCH:   I believe in my redirect, she testified that Nationstar is the holder of the note.

THE COURT:  But not at any particular time.

MR. SILEVITCH:   Correct.  I’m getting there. She testified —

THE COURT:  She’s basically saying I produced the note in court as the agent for Nationstar?

MR. SILEVITCH:   That’s one of the things.  She testified to the payment history.  She testified that the chain of servicers was First Magnus, who was the originating lender. Shortly after origination, it went to Aurora Loan Services, LLC, and after that, it went to Nationstar Mortgage, LLC.  She testified to what was in the payment history, that shortly after origination, the first payment was received by Aurora Loan Services. I believe it was July 1st, 2014.  Subsequent payments were made to Aurora Loan Services.  The borrower is well aware that Aurora Loan Services was servicing the loan, as they were submitting payments to them. In June, 2012, the loan then service transferred through acquisition to Nationstar Mortgage, LLC, who is now the —

THE COURT:  How does that prove that you hold the note, the fact that you are making payments to somebody?

MR. SILEVITCH:   Well, under Florida statute 673.3011, you can be entitled to enforce the note, and not in possession of the note.  As we have here, there was a lost note count pled, going back to his request for admissions.

THE COURT:  Let’s assume it is not a lost note.  Let’s say that’s a note that was never lost. All right? And someone is making — let’s talk about this very narrow issue.  Someone is making payments to a servicer, making payments to an agent.  We always call it the servicer, but really, what you’re talking about is they are an agent for somebody that’s entitled to the payments. Either they are entitled to the payments on their own, or they are entitled to the payments as the agent for somebody.  It could be either one. So the mere fact that you are making payments to somebody, how does that mean that that somebody is the holder of the note? For example, couldn’t you have an owner of the note who is also the holder of the note hire a company to collect the payments for them?

MR. SILEVITCH:   Correct.  Well —

THE COURT:  How do we know it’s not that kind of a situation?

MR. SILEVITCH:  Well, if that were the case, the statute also allows for that entity to enforce the note.

THE COURT:  It will allow the owner to enforce the note, but it doesn’t allow the agent to enforce the note.

MR. SILEVITCH:  Well, it allows the —

THE COURT:  Well, I take that back.  When they are in authority, they can enforce the note, if they are designated by the owner of the note to enforce the note.

MR. ROSEN:  A nonholder in possession with the rights of a holder, subsection two.

THE COURT: Right.  Here’s the problem you’ve got, it seems to me.  There’s no evidence in the record other than the payment history and the two post-dated assignments that indicate an assignment of a mortgage, not an assignment of the note. But regardless of that fact, there’s nothing in the record to indicate who possessed the note on a day the lawsuit was filed.  How do we know who possessed the note on the date the lawsuit was filed?  That could have been some other party.

MR. SILEVITCH:  Well, a copy of the note was attached to the complaint.

THE COURT:  But that’s not a copy — that’s our problem.  That’s what raises the question mark. The question mark that’s raised in this case by virtue of the fact that the copy of the note that’s attached to the complaint doesn’t have a blank endorsement on it.  Am I correct?

MR. ROSEN:  That’s correct, Judge.  It does not.

THE COURT:  So it doesn’t have a blank endorsement on it, and that raises a great big giant question mark, which you can overcome, but you have to overcome it somehow.

MR. SILEVITCH:  Right.  Well, my witness testified to the — she testified to the relationship and the servicer, the subsequent servicers about being the holder. The statute 673.3011, if you look at the bottom, says a person may be entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. Even if that were the case, if they were in wrongful possession of it, they would be entitled to enforce it.

THE COURT:  Let me ask you a question. Suppose you have a lender that is in possession of a note, and then there’s a succession of servicers — in this case, I’ve heard reference to four — there’s a succession of servicers who have some rights as the agent of the owner. And then ultimately, the last of those servicers ends up with possession of the note at some point in time, we know not when.  Does that give — is that fact alone sufficient to allow a judge to find that there was standing on the day the suit was filed?

MR. SILEVITCH:  Well, the standing is a preponderance of the evidence.  It’s based off the weight of evidence that was presented.  Counsel didn’t provide any evidence into the record to the contrary.

MR. ROSEN:  Actually —

THE COURT:  Aurora Bank or something —

MR. ROSEN:  There was Aurora Bank before Aurora Servicing.

THE COURT:  We know Aurora Bank had something to do in here, we know that Lehman had something to do in here, and we don’t know what.

MR. SILEVITCH:  No, we don’t, Your Honor. It’s hearsay.

THE COURT: Aren’t their names in the loan history?

MR. SILEVITCH:  No.  What’s in the loan history is First Magnus, the Aurora loan number who was servicing the loan at the time, and then it went to Nationstar. Counsel showed my witness and wanted — I’m not sure, but I believe wanted Your Honor to take judicial notice of a document that was attached to a discovery response.

MR. ROSEN:  It was not a discovery response. It was a pleading.

THE COURT:  That was a discovery response?

MR. ROSEN:  That was a reply to affirmative defense, which is a pleading by definition, Judge. That’s a pleading.  It’s a judicial admission.

MR. SILEVITCH:   That was a request for production.

MR. ROSEN:  It wasn’t.  You can pull the record, Judge.  It’s not accurate.  I apologize for interrupting, but it’s not truthful.

THE COURT:  Okay.  But it’s not in the loan history?  I thought it was in the loan history.

MR. ROSEN:  No.  The loan history is an incorporation of multiple servicers, how many, we’re not exactly sure.  I crossed her on that, and she didn’t know. But I have records from their own response in the pleading that says there might be multiple servicers, and that was a printout from MERS.

MR. SILEVITCH:  And Your Honor, she never testified to the fact that she knew what the document was.  He asked her — he pointed out a couple words and had her read that.  That document was not in evidence. No predicate was laid.  There was no foundation.  The document is hearsay.  What we have on the record is a payment history, loan history, showing Aurora to Nationstar.

THE COURT: Okay.  And Nationstar took over Aurora?

MR. SILEVITCH:  Correct.

THE COURT: And Aurora was the plaintiff at the time the suit was filed?

MR. SILEVITCH:  Correct.

THE COURT:  And we’re looking at this at the time the suit was filed, so —

MR. ROSEN:  Well, there’s another party that he’s ignoring all of a sudden.  That’s First Magnus, and there was testimony to that.

THE COURT: Hold on.  Let’s back up for a minute.  So except for whether or not the First Magnus issue is before me — the Aurora Bank issue is before me, according to the plaintiff, what we’ve got is First Magnus has the note, obviously, as the lender. Aurora is shown on the loan history as being the only servicer from the time of the first payment.  We don’t know yet about these other two entities. It doesn’t really matter about Nationstar, because we’re only concerned about Aurora.  Did Aurora possess the note at the time Aurora filed the lawsuit for standing?  On the standing point. We don’t care about Nationstar.

MR. ROSEN:  I think we do, but that’s another point.

THE COURT: For standing?

MR. ROSEN:  Yeah.  I think you have to have standing all the way through, but that’s another story, altogether.

MR. SILEVITCH:  Judge, there was a lost note count pled.

THE COURT:  I’m only looking at the time —

MR. ROSEN:  That’s fine for now.

THE COURT: I’m concerned right now at the time the suit was filed.  At the time the suit was filed, we’ve got two entities involved —

MR. ROSEN:  Three.

THE COURT:  — that we know of.

MR. SILEVITCH:  No.  Two at the time it was filed.

THE COURT: According to plaintiff, Nationstar, and the other being Aurora.  Now, let’s assume that that’s true. As far as the plaintiff knows, there’s only two entities that are involved, the lender and Aurora.

MR. ROSEN: Who are servicing, nothing to do with holding.  Just servicing, collecting payments.

THE COURT:  We know who was collecting the money on the account.

MR. ROSEN: Correct.  Which you pointed out means nothing.

THE COURT:  We don’t know — and we know also that Freddie Mac got into this picture at some point.

MR. ROSEN:  Correct.

THE COURT: And that’s undisputed.  And we don’t know at what point Freddie Mac got into the picture.  So how do we know that that note was endorsed by First Magnus prior to the time the suit was filed?

MR. SILEVITCH:  Your Honor, I do have authority that states all that’s needed is —

THE COURT: How do we know when Aurora came into possession, if ever, of that note?

MR. ROSEN: We don’t, Judge.  The only evidence that’s before us is — and they said we have no evidence.  We have a request for admission that they admitted they didn’t have it at the time of filing suit.

THE COURT:  Yeah, but at that time, they are claiming a lost note, so it would be the right to possession.

MR. ROSEN:  Two years later, they said that, that they didn’t have the note.

MR. SILEVITCH:  Well, that says we didn’t have the note at the time the suit was filed, which is an accurate statement.

MR. ROSEN:  That’s a problem, then.  And they don’t have any evidence as to —

MR. SILEVITCH:  We had a lost note count.  How could you have possession of it when you have a lost note count?

MR. ROSEN:  That’s the answer right there.

THE COURT:  Well, the point is you have to have a right — they still have to demonstrate that they have a right to possession on the day the suit — that Aurora has the right to possession on the date the suit was filed.  And I don’t have any evidence as to that.

MR. SILEVITCH:  Well, Your Honor, we do have the witness’s testimony to her records, mainly the payment history, that they have the right to collect payments.

THE COURT: I’ve got to be honest.  I don’t think the payment history cuts it.  I don’t think the payment history that someone is collecting money is indicative of anything other than the fact that they obviously have the right to be collecting the money for somebody, because nobody is complaining that they are collecting the money for two years. So I think that’s good evidence that they are the servicer of the loan, and with authority to collect the money.  Otherwise, somebody would be complaining. But the — I don’t think its indicative of anything with respect to the note, when it was endorsed, who it was endorsed to, who possessed it, and who had the right to possess it.

MR. SILEVITCH:   Your Honor, it was a David Stern complaint.  A lot of endorsements are on the back of the note.

THE COURT:  I recognize that.

MR. SILEVITCH:  It didn’t make it.  I do have case law which says —

THE COURT: I recognize that, and I’m not holding it against you, frankly, the fact that it’s a two-count complaint, because the record — the appellate court wouldn’t know it, but the record ought to show that there are thousands of David Stern complaints that have a count one and a count two, count two being a lost note count. So the fact that there’s a count two lost note count by itself doesn’t hold a lot of water with the Court.  It’s common knowledge in this courthouse that that’s how all those — almost all those complaints were filed. On the other hand, I’m not sure that that means anything.  So I think we have a problem in this case.  I think there’s a definite problem of standing. I don’t think those assignments — I haven’t compared the two assignments, so it sounds from what the question was that one of them in is question, anyhow, but without even comparing the assignments, just the fact that they are post-dated by two years — if these assignments were dated before the suit was filed, then it would mean something. But two years after the suit was filed doesn’t mean a thing in terms of what was the status of matters on the suit was filed.

MR. SILEVITCH:  Your Honor, if I can interject for a couple things?  Statute 673.3011 states a person may be entitled to enforce the instrument, even though the person is not the owner of the instrument or in wrongful possession of the instrument.

THE COURT:  That’s true.  On the date the suit is filed.

MR. SILEVITCH:  Correct.

THE COURT:  But we’re not talking about — if we didn’t have a standing issue, and you show up today in court with the note, that applies to you, and I would allow you, even if you were a thief, to enforce the note. And you could enforce the mortgage, because the mortgage follows the note.  But that’s not the standing question.  The standing question is who had that right on the day the suit was filed?

MR. SILEVITCH:  Well, it goes to where the evidence — the complaint was filed by Aurora, there’s an assignment from Aurora to Nationstar. Plaintiff showed up here today with the original note and mortgage in hand. They have been filed with the Court.  I do have authority, Deutsche Bank versus DePerry.  It’s out of the 4th DCA.

THE COURT: If I accept what you are saying, then there would never be a standing issue in this court.  I mean, 99.9 percent of the standing issues are exactly this. You always have a plaintiff who’s got a loan history that they can produce, and most often — more often than not, they will come in with a post-dated assignment.  But those two facts alone don’t cut it.

MR. ROSEN: Judge, I have no less than 15 cases that reiterates standing and inception is the law on its face.

MR. SILEVITCH:  In this case, it stands to the proposition that you can — that you need to attach an adequate portion of the copy of the note, and it can be supplemented later.  You know, the note that was put into evidence does have a blank endorsement from First Magnus.

MR. ROSEN: Judge, there’s absolutely no evidence of standing and inception, zero.  Her knowledge is based upon review of records. There’s not a single business record that says where the note was at the time of filing.  We’re getting so sidetracked with servicing and notes showing up now.  That’s just not the law. And you allowed standing objections throughout the trial where there’s testimony as to the contents of a record without that record first coming in. There is not a single record, collection note, or anything that would show that, and there needs to be.  We can go through Green, we can go through Saber, Hall v REO, Progressive v McGrath. There’s so many cases on standing and inception, as the Court is well aware.

THE COURT: I just don’t see it.

MR. SILEVITCH:  Your Honor, I think it goes to the weight of the evidence.  The borrower made payments to Aurora Loan Services.

THE COURT:  To save time, I’m not going to address the other issues in the motion to dismiss. I’m going to withhold the ruling on the motion to dismiss, and go ahead with the case.

MR. ROSEN: Fair enough, Judge.  I have no witnesses or exhibits to introduce at this time.

THE COURT: And you rest?

MR. ROSEN:  Rest.

THE COURT:  And you make the same final argument?

MR. ROSEN: Same final argument, now with the standard of weighing the evidence, by a preponderance —

THE COURT:  And all the doubts I’ve expressed, that’s why I feel that you haven’t proved your case by a preponderance of the evidence. So either they are entitled to a dismissal outright, which as I indicated, I don’t know if there’s a case that tells you what the weight is, or you haven’t satisfied me by what I consider to be trustworthy evidence that the — that you’ve proved standing of Aurora at the time Aurora filed the case.  And so —

MR. SILEVITCH:  And Your Honor, I would just go back to my argument, the fact that payments were made to Aurora, they were servicing the loan.  They don’t necessarily need to be in possession of the note and mortgage.

THE COURT:  I agree.  You have proved that to my satisfaction, and the record should show that you’ve proved to my satisfaction Aurora was the servicer, and they were servicing it at the time the suit was filed, and I’m not making this decision on the basis of whether they had authority to file the suit, or whether they had the authority to be the servicer. I’m making this decision purely on the question of standing under the uniform commercial code at the time the suit was filed, and I just don’t think that you’ve proved that.

MR. ROSEN:  Thank you, Judge.

THE COURT:  So by either as a holder of the lost note, or a regular note that wasn’t lost, or as the owner with a right to file suit, under any of those theories, I don’t have enough information that I can rule in your favor. So it’s dismissed either on the motion to dismiss, or on the — for lack of standing on the final — as a final decision in the case.  Either way, I rule in favor of the defendant.  And I want to make it clear that I’m doing this on the basis of standing.

MR. ROSEN:  We can write that up, Judge. Thank you.

(Thereupon, the proceeding was concluded.)

Case Dismissed!

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