Florida Record

Tuesday, September 24, 2019

Florida couple prevails in foreclosure appeal

By Charmaine Little | Apr 21, 2017

BROWARD COUNTY — A Florida couple won an appeal in a foreclosure case ruling by the 4th District Court of Appeal of Florida, according to an April 19 opinion.

Mara and Glenn Powell appealed the judgment of the Circuit Court for the 17th Judicial Circuit, Broward County in favor of the lender, Wells Fargo Bank N.A. The bank was a trustee for Structured Asset Mortgage Investments II Inc. and GreenPoint Mortgage Funding Trust. 

The appeals court saw that the Powells had a valid case and reversed the trial court’s ruling after the bank “failed to establish standing.”

In 2008, the couple defaulted on a loan three years after they signed a mortgage with the original lender, Bankers Mortgage Trust Inc. The bank accused the Powells of two counts: mortgage foreclosure and “reestablishing” a note that was allegedly lost. A piece of paper attached to the copy of the note approved the new owner of the loan from the original lender to GreenPoint Mortgage Funding Inc. The claim about the lost note was dismissed after the bank failed to prove that it was the “legal and/or equitable owner and holder of the Note and Mortgage and (had) the right to enforce the loan documents.”

In October 2013, the bank took the issue to trial court with the original note. This note approved GreenPoint Mortgage, as did the back of the note and a second piece of paper attached. The bank’s sole witness, Pamela Bingham, who worked as a home lending research officer for JP Morgan Chase, spoke on behalf of the lender. But her testimony did not benefit the bank when she couldn’t determine when the approval for GreenPoint Mortgage to take over the loan was included in the note or whether it was on the back or on another piece of paper, according to court records.

The bank said “it could not establish standing as holder of the note in light of the witness’s testimony." It subsequently changed its complaint to fit the evidence that was presented in trial and “change its theory of standing from holder in possession to non holder in possession with the rights of the holder.”

The trial court ruled in favor of the bank. 

The Powells filed an appeal alleging the bank never provided valid evidence that it received the note from the original lender, and therefore it could not win the case as a nonholder in position with the rights of the holder. While the bank argued that Bingham’s statements were enough to prove the status, the appeals court did not agree.

“There was nothing, however, connecting the bank the endorsee of the note, GreenPoint Mortgage, to EMC Mortgage or the Bank," the court said. "In other words, the Bank failed to prove the series of transactions through which it purportedly acquired the note from the endorsee.”

The appeals court overturned the trial court’s decision, favoring the borrowers.

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Florida Fourth District Court of Appeal