       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

                                     October 31, 2017

WELLS FARGO DELAWARE TRUST                 )
COMPANY, N.A., as trustee for              )
VERICREST OPPORTUNITY LOAN                 )
LOAN TRUST 201-NPL1,                       )
                                           )
              Appellant,                   )
                                           )
v.                                         )             Case No. 2D16-1536
                                           )
ALEXEY PETROV; FIFTH THIRD                 )
BANK; AMSOUTH BANK;                        )
TOWNHOMES AT TURTLE CREEK                  )
ASSOCIATION, INC.; AMERICAN                )
EXPRESS CENTURION BANK;                    )
RHONDA PETROV; and FLORIDA                 )
LIMITED INVESTMENT                         )
PROPERTIES, INC.,                          )
                                           )
              Appellees.                   )
                                           )

BY ORDER OF THE COURT:


              Appellant Wells Fargo's Motion to Correct Opinion is stricken as untimely.

On this court's own motion, the prior opinion dated October 6, 2017, is withdrawn and

the attached opinion is issued in its place. The substituted opinion deletes a reference

to a "tax deed" in the third paragraph of the opinion and replaces it with "certificate of

title." No further motions for rehearing will be entertained.




I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER


MARY ELIZABETH KUENZEL, CLERK
                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT

WELLS FARGO DELAWARE TRUST                   )
COMPANY, N.A., as trustee for                )
VERICREST OPPORTUNITY LOAN                   )
LOAN TRUST 201-NPL1,                         )
                                             )
              Appellant,                     )
                                             )
v.                                           )     Case No. 2D16-1536
                                             )
ALEXEY PETROV; FIFTH THIRD                   )
BANK; AMSOUTH BANK;                          )
TOWNHOMES AT TURTLE CREEK                    )
ASSOCIATION, INC.; AMERICAN                  )
EXPRESS CENTURION BANK;                      )
RHONDA PETROV; and FLORIDA                   )
LIMITED INVESTMENT                           )
PROPERTIES, INC.,                            )
                                             )
              Appellees.                     )
                                             )

Opinion filed October 31, 2017.

Appeal from the Circuit Court for
Hillsborough County; Perry A. Little,
Senior Judge.

David W. Rodstein of Rodstein Law
Group, P.A., Ft. Lauderdale; and
Norman Rodney Holmes and Silver
Deutch of Millennium Partners,
Aventura, for Appellant.

Uta S. Grove of Grove & Cintron, P.A.,
Largo; Starlett M. Massey of
McCumber Daniels, Tampa; and
Karen E. Maller of Powell, Carney,
Maller, P.A., St. Petersburg, for Appellee
Florida Limited Investment Properties,
Inc.
No appearance for remaining
Appellees.


ROTHSTEIN-YOUAKIM, Judge.

              Wells Fargo Delaware Trust Company, N.A., as Trustee for Vericrest

Opportunity Loan Trust 201-NPL1, appeals from an order involuntarily dismissing its

foreclosure complaint after a bench trial. 1 Because the trial court erroneously

concluded that Wells Fargo's servicer, Caliber Home Loans, f/k/a Vericrest Financial, 2

and its employee, Scott Logue, had prosecuted this action on Wells Fargo's behalf

without proving that they had been authorized to do so, we reverse and remand for

reinstatement of Wells Fargo's second amended complaint.

                              THE PROCEEDINGS BELOW

              On June 2, 2004, Alexey Petrov executed the mortgage and note at issue

in this case. On December 1, 2010, Petrov stopped making mortgage payments.

              In February 2012, Wells Fargo filed a foreclosure complaint. Petrov failed

to defend, and the clerk entered a default on May 22, 2012. That same day, Wells

Fargo moved for a final summary judgment of foreclosure and filed with the trial court

the original mortgage and note. Subsequently, however, Wells Fargo discovered that a

certificate of title for the property had been issued to Florida Limited Investment




              1Although   styled as an "Order of Dismissal," the order includes traditional
words of finality and refers to itself as a "judgment." Accordingly, we construe it as an
entry of judgment that is final and appealable. See HSBC Bank USA, Nat'l Ass'n v.
Buset, 216 So. 3d 701, 702-03 (Fla. 3d DCA 2017).
              2Wereject without comment Florida Limited Investment Properties, Inc.'s
repeated suggestion that Vericrest and Caliber are separate and distinct entities.

                                            -2-
Properties, Inc. (FLIP), before Wells Fargo had initiated the foreclosure action, so Wells

Fargo moved to amend the complaint to include FLIP as a defendant. The trial court

granted the motion, and Wells Fargo filed an amended complaint and served FLIP.

FLIP filed a motion to dismiss the amended complaint, which the court granted for

reasons not pertinent to this appeal.

              In April 2014, Wells Fargo filed its second amended complaint, which FLIP

unsuccessfully moved to dismiss. At the December 2015 trial, Wells Fargo, through

Logue, entered into evidence the original note with allonges, the original mortgage,

assignments of the mortgage, the notice of default, the loan payment history, and other

exhibits. Logue testified as to the servicer's boarding process and its role in maintaining

the mortgagee's loan records. In short, this was—or should have been—a run-of-the-

mill foreclosure proceeding at which the plaintiff proved standing, its fulfillment of

conditions precedent, the facts supporting the default, and the amounts due.

              The groundwork for the error requiring reversal, however, was laid when

FLIP objected to the admission of the Limited Power of Attorney (LPOA) between Wells

Fargo and Vericrest/Caliber. FLIP argued that the LPOA only authorized

Vericrest/Caliber to "creat[e] . . . documents" and did not "provide[] for . . . testimony or

the filing of foreclosures." The trial court overruled the evidentiary objection but directly

questioned Logue on the issue, repeatedly asking whether Logue could point out in the

document itself what provision gave Vericrest/Caliber "the authority to prosecute the

foreclosure action."

              Post-trial, the trial court directed the parties to file written closing

arguments. In FLIP's "Motion for Involuntary Dismissal, Closing Argument, and




                                              -3-
Memorandum of Law," FLIP argued, in pertinent part, that the LPOA did not give

Vericrest "the authority to hold the Note, or to enforce the Note or to foreclose the

Mortgage," to verify the complaint on behalf of Wells Fargo, to initiate suit on behalf of

Wells Fargo, or to give testimony on behalf of Wells Fargo. Moreover, FLIP argued,

Caliber lacked any authority at all under the LPOA because "the power of attorney was

only in favor of Vericrest, as Caliber Home Loans didn't exi[s]t." 3

              The trial court granted FLIP's motion for involuntary dismissal, stating:

              A.     Plaintiff, WELLS FARGO DELAWARE TRUST
              COMPANY N.A., AS TRUSTEE FOR VERICREST
              OPPORTUNITY LOAN TRUST 201-NPL1 [sic], hereinafter
              referred to as "WELLS FARGO", presented the testimony of
              a single witness, SCOTT LOGUE, hereinafter referred to as
              "LOGUE."

              B.     LOGUE testified that he was not an employee of
              WELLS FARGO but was an employee of CALIBER HOME
              LOANS, INC. LOGUE further testified that he was
              authorized, as an employee of CALIBER HOME LOANS,
              INC., to testify on behalf of WELLS FARGO pursuant to a
              Limited Power of Attorney, a photocopy of which was
              admitted into evidence as Plaintiff's Exhibit 2.

              C.    The Limited Power of Attorney executed by WELLS
              FARGO did not grant to its Attorney-in-Fact, CALIBER
              HOME LOANS, INC., the authority to prosecute the litigation
              on behalf of WELLS FARGO. LOGUE, who is not an
              employee of WELLS FARGO, did not have the authority to
              prosecute the case on behalf of WELLS FARGO.


              3We  question whether FLIP had standing to raise any of these arguments.
Although FLIP acquired its interest in the property before the filing of the lis pendens,
there is no evidence that FLIP ever attempted to assume the mortgage or to cure the
existing default when it purchased the property. Therefore, it does "not stand in the
shoes of the mortgagors and cannot participate in the bank's foreclosure as though [it]
were a party to the mortgage." Pealer v. Wilmington Tr. Nat'l Ass'n, 212 So. 3d 1137,
1137-38 (Fla. 2d DCA 2017) (Sleet, J., specially concurring). Wells Fargo, however, did
not challenge FLIP's standing to participate in the foreclosure proceeding below and, in
any event, does not raise this issue on appeal.


                                            -4-
                                        ANALYSIS

              Upon our de novo review, see Green Tree Servicing LLC v. Sanker, 204

So. 3d 496, 497 (Fla. 4th DCA 2016), we hold that the trial court erred in granting FLIP's

motion for involuntary dismissal. The basis for the court's error was its

misapprehension—fostered by FLIP—that Caliber and Logue were "prosecuting the

case on Wells Fargo's behalf." Caliber, as Wells Fargo's servicing agent, verified Wells

Fargo's foreclosure complaint, and Logue, as Caliber's employee, testified as a witness

for Wells Fargo at the foreclosure trial. Neither of these actions constituted "prosecuting

the case on Wells Fargo's behalf"—Wells Fargo is and always has been the plaintiff in

this case. Servicing agents routinely verify complaints filed by noteholder-plaintiffs.

See Deutsche Bank Nat'l Tr. Co. v. Plageman, 133 So. 3d 1199, 1200-01 (Fla. 2d DCA

2014) (explaining difference between servicer that files foreclosure complaint in its own

name on behalf of owner and holder of note and servicer that merely verifies complaint

filed in name of owner and holder of note); Deutsche Bank Nat'l Tr. Co. v. Huber, 137

So. 3d 562, 564 (Fla. 4th DCA 2014) (finding error with trial court's determination that

appellant's servicing agent lacked standing to bring foreclosure action on appellant's

behalf when record "clearly reflect[ed]" that appellant filed foreclosure complaint on its

own behalf and that servicing agent merely verified complaint); see also US Bank Nat'l

Ass'n v. Marion, 122 So. 3d 398, 399 (Fla. 2d DCA 2013) (reversing dismissal on basis

that servicer's employee verified bank's foreclosure complaint); Deutsche Bank Nat'l Tr.

Co. v. Prevratil, 120 So. 3d 573, 576 (Fla. 2d DCA 2013) (holding that Florida Rule of

Civil Procedure 1.110 does not require that verification be based on personal

knowledge). Moreover, noteholder-plaintiffs routinely call servicing agents to testify




                                            -5-
regarding business records that servicing agents maintain in connection with the

mortgage and note to establish the noteholder-plaintiffs' right to pursue foreclosure.

See, e.g., Shaffer v. Deutsche Bank Nat'l Tr., 42 Fla. L. Weekly D889, D889 (Fla. 2d

DCA Apr. 19, 2017); Rosa v. Deutsche Bank Nat'l Tr. Co., 191 So. 3d 987, 988 (Fla. 2d

DCA 2016); Michel v. Bank of N.Y. Mellon, 191 So. 3d 981, 982 (Fla. 2d DCA 2016);

Bolous v. U.S. Bank Nat'l Ass'n, 210 So. 3d 691, 692 (Fla. 4th DCA 2016); Deutsche

Bank Nat'l Tr. Co. v. Marciano, 190 So. 3d 166, 167 (Fla. 5th DCA 2016); Seidler v.

Wells Fargo Bank, N.A., 179 So. 3d 416, 420 (Fla. 1st DCA 2015); Guerrero v. Chase

Home Fin., LLC, 83 So. 3d 970, 972 (Fla. 3d DCA 2012). Consequently, we conclude

that Caliber's and Logue's asserted need for "authority to prosecute" this action was

nothing more than a red herring with which FLIP somehow managed to mislead the trial

court.

                                     CONCLUSION

              Because the trial court misapprehended Caliber's and Logue's need for

authorization to prosecute this foreclosure action, we reverse the judgment and remand

for reinstatement of Wells Fargo's second amended complaint and for further

proceedings not inconsistent with this opinion.

              Reversed and remanded with directions.


WALLACE and MORRIS, JJ., Concur.




                                           -6-
