                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

DAVID LEE HAM, JR.,                  NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-4024

NATIONSTAR MORTGAGE,
LLC,

      Appellee.

_____________________________/

Opinion filed May 12, 2015.

An appeal from the Circuit Court for Clay County.
Frederic A. Buttner, Judge.

David Lee Ham, Jr., pro se, Appellant.

Nancy M. Wallace and Michael J. Larson of Akerman LLP, Tallahassee, and
William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee.




BILBREY, J.

      Appellant, David Lee Ham, Jr., appeals the final judgment of foreclosure

entered in favor of Nationstar Mortgage, LLC.       Because the evidence of the
original plaintiff’s standing to enforce the note was insufficient to support the final

judgment, we reverse.

      The lawsuit commenced on February 7, 2008, upon the filing of the

complaint by Aurora Loan Services, LLC. In Count I, Aurora alleged that it

sought to “reestablish a promissory note under Section 673.3091, Florida Statutes,”

that it was the owner of the note, and that it “was in possession of the promissory

note and was entitled to enforce it when loss of possession occurred.” Aurora

specifically alleged that the “note is not in the custody or control of Plaintiff.”

Count II was for foreclosure of the mortgage securing the note. Attached to the

complaint was a mortgage naming Appellant as the borrower and 123Loan, LLC as

the lender. The mortgage described a note dated August 17, 2004, establishing a

debt owed by Appellant to 123Loan for $50,000.00. However, no note (and thus,

no indorsement), no assignment of the note, and no affidavit of ownership of the

note was attached to the complaint.

      In his answer to the complaint, Appellant denied the allegations that Aurora

was the owner of the note, that the note was lost subsequent to Aurora’s acquisition

of it, and that Aurora was entitled to enforce the note at the time it was lost.

      More than three years after the original complaint was filed, Aurora moved

for leave to amend its complaint and the court granted the motion. Aurora filed its

Verified Amended Complaint on June 7, 2011. The amended complaint dropped

                                           2
the lost note count and consisted of only one count, for foreclosure. Aurora

alleged that it was the servicing agent, the designated holder of the note, and that

the note and mortgage had been in default since October 1, 2007. Attached to the

amended complaint was a “Corporate Assignment of Mortgage” dated April 9,

2008, assigning the mortgage “together with the Note” from Mortgage Electronic

Registration Systems (“MERS”) to Aurora. Also attached was a copy of the Note,

each page of which was stamped with a certification that it was a “true and correct

copy of the original” and initialed by an unknown person. The copy of the Note

was dated August 17, 2004, and listed 123Loan as the lender and Mr. Ham as the

borrower. After the signature page of the Note, an undated indorsement in blank

(no designated payee) was attached, signed by the Vice President of 123Loan,

LLC.    This blank endorsement made the Note payable to the bearer.          See §

673.2051(2), Fla. Stat.

       Appellant’s answer to the amended complaint denied that Aurora was the

holder of the note, denied that the mortgage was in default, and asserted the

affirmative defense that Aurora lacked standing to sue for foreclosure, both at the

time the original complaint was filed and when the amended complaint was filed.

In support of this affirmative defense, Appellant asserted that the “Corporate

Assignment of Mortgage” from MERS to Aurora was executed only after the

filing of the original complaint.      Appellant also challenged the Corporate

                                         3
Assignment because the assignor was MERS, not 123Loan.

      By order entered June 12, 2012, upon Aurora’s motion for substitution, the

court substituted Nationstar as the party plaintiff. A second Corporate Assignment

of Mortgage (from Aurora to Nationstar) was attached to Aurora’s motion. The

second corporate assignment provided an effective date of July 1, 2012, and

addressed only the mortgage, without reference to the note.

      Following Appellant’s unsuccessful motions to dismiss and for summary

judgment, the bench trial took place on August 28, 2014. The final judgment of

foreclosure was entered that same day in favor of Nationstar in the amount of

$83,566.18. Appellant filed a timely appeal of the final judgment.

      This Court’s scope of review is somewhat limited by the failure of Appellant

to provide a transcript of the bench trial. However, unlike the appeal in Applegate

v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979), where no transcript of

the bench trial and no “proper substitute” was supplied by the appellant, the scope

of our review is not limited to the face of the final judgment. Here, Appellant

prepared a statement of the evidence or proceedings and Nationstar submitted

objections and proposed amendments to that statement.           Fla. R. App. P.

9.200(b)(4). The trial court approved Nationstar’s objections and amendments and

disapproved Appellant’s statement. Accordingly, the evidentiary record before us

consists of the approved statement of the evidence and proceedings and the

                                        4
numerous documents admitted into evidence in the record. See Soto v. Soto, 974

So. 2d 403, 404 (Fla. 2d DCA 2007) (“Thus, as the evidentiary record, we have

before us the twelve-page statement of the evidence, along with numerous

financial exhibits.”).

      The lack of a transcript of the final hearing prevents this Court from

reviewing the trial court’s exercise of its discretion to admit or exclude evidence

such as the testimony of the witness as described in the statement of the evidence,

Nationstar’s business records, and Appellant’s excluded financial records. In order

to preserve an evidentiary ruling for appellate review, a contemporaneous

objection on the specific legal ground raised on appeal must be made in the trial

proceedings, and the objecting party must obtain a ruling by the trial court for the

appellate court to review. See State v. Currilly, 126 So. 3d 1244, 1245 (Fla. 1st

DCA 2013). The preservation rule applies in both criminal and civil cases. See

Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 64 (Fla. 2012) (applying rule

in civil proceedings); Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) (same). The

absence of a transcript of the final hearing precludes our consideration of whether

sufficiently specific objections to admission or exclusion of evidence were made so

as to inform the trial court of the perceived evidentiary errors. See Aarmada

Protection Systems 2000, Inc. v. Yandell, 73 So. 3d 893, 898 (Fla. 4th DCA 2011)




                                         5
(“absent a transcript of the hearing on the motion in limine, we must affirm a

ruling [on the motion] that is not fundamentally erroneous on its face.”).

      The statement of evidence and proceedings, as approved by the trial court,

refers generally to Appellant’s objections “to the introduction of evidence” which

were “all overruled, including objections as to hearsay, authentication, and

relevance.” However, unlike the record in Burdeshaw v. Bank of New York

Mellon, 148 So. 3d 819 (Fla. 1st DCA 2014), which contained a complete

transcript of the final hearing, the bald reference in the statement of evidence in

this case provides no particulars of the context or specifics of any hearsay

argument, such as the application of the business records exception to the hearsay

rule or the qualifications of the witness to testify about any business records under

section 90.803(6), Florida Statutes. The record in this case is not sufficient to

preserve for appellate review any challenge to the admission or exclusion of

documents or testimony at the bench trial.

      While particular evidentiary objections and rulings were not preserved for

appellate review, Appellant’s challenge to the sufficiency of the evidence of

Nationstar’s standing is cognizable in this appeal. Rule 1.530(e), Florida Rules of

Civil Procedure provides that when “an action has been tried by the court without a

jury, the sufficiency of the evidence to support the judgment may be raised on

appeal whether or not the party raising the question has made any objection thereto

                                          6
in the trial court or made a motion for rehearing, for new trial, or to alter or amend

the judgment.” See Burdeshaw (applying rule 1.530(e) to appeal of final judgment

of foreclosure); Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So. 3d 152, 153

(Fla. 1st DCA 2014) (same).

        The standard of this court’s review of the sufficiency of the evidence to

prove standing to bring a foreclosure action is de novo. Pennington v. Ocwen

Loan Servicing, LLC, 151 So. 3d 52, 53 (Fla. 1st DCA 2014).

        The documents in the record clearly establish that the original plaintiff,

Aurora, was not the original lender. The law is firmly settled that “[a] plaintiff

who is not the original lender may establish standing to foreclose by submitting a

note with a blank or special indorsement, an assignment of the note, or an affidavit

otherwise proving his status as a holder of the note.” Pennington v. Ocwen Loan

Servicing, LLC, 151 So. 3d 52, 53 (Fla. 1st DCA 2014); Focht v. Wells Fargo

Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013); McLean v. JP Morgan

Chase Bank N.A., 79 So. 3d 170, 173 (Fla. 4th DCA 2012). No document fitting

the description above was attached to the original complaint when it was filed in

2008.

        “[S]tanding must be established at the time of the filing of the foreclosure

action.” May v. PHH Mortgage Corp., 150 So. 3d 247, 248 (Fla. 2d DCA 2014);

Pennington, at 53; Focht, at 310. A party’s standing “is determined at the time the

                                          7
lawsuit was filed” and “a party is not permitted to establish the right to maintain an

action retroactively by acquiring standing after the case is filed.” McLean, at 173.

Although this rule has been criticized at times, we are bound to follow this long-

standing rule established by the Florida Supreme Court. See Focht, 124 So. 3d at

311-12 citing Marianna & B.R. Co. v. Maund, 62 Fla. 538, 56 So. 670 (Fla. 1911);

Voges v. Ward, 98 Fla. 304, 123 So. 785 (Fla. 1929).

      In the initial complaint, Aurora alleged that it did not possess the note on the

date the complaint was filed. The amended complaint filed in June of 2011

included an attached corporate assignment dated April 9, 2008, but that attachment

did not establish that an assignment had occurred as of February 7, 2008, the filing

date of the initial complaint.     Aurora’s lost note allegations in the original

complaint, pursuant to section 673.3091, Florida Statutes, were never proved and

were abandoned in the amended complaint. The blank indorsement filed with the

certified copy of the note on June 7, 2011 might have been sufficient to prove that

Aurora was entitled to enforce the instrument, under section 673.3011, as of June

7, 2011. But Appellant’s denial of Aurora’s status as owner or holder in the

answer to the amended complaint and affirmative defenses made the issue of

Aurora’s standing to enforce the note as of the filing of the original complaint a

contested issue for Aurora to prove. The undated blank indorsement did not

answer the question of “whether the indorsement in blank antedated the filing of

                                          8
the original complaint.” Kiefert v. Nationstar Mortgage, LLC, 153 So. 3d 351, 353

(Fla. 1st DCA 2014).

      The insufficiency of the documents in the record to establish Aurora’s

standing as a party entitled to enforce the note on February 7, 2008, was not cured

by the evidence presented at the bench trial.        According to the statement of

evidence and the proceedings, Nationstar relied on the testimony of its employee,

Joan Osiemo. Ms. Osiemo began her employment with Nationstar as a “Litigation

Research Analyst” in 2012. Although she did not testify that she was ever

employed by Aurora or any other previous servicer of the mortgage or holder of

the note, she testified that “Nationstar purchased the assets of Aurora via an asset

Purchase    Agreement.”     She    was    familiar     with   Aurora’s   “platform,

policies/procedures, etc. as Nationstar employed numerous former Aurora

employees who trained them and worked with the Nationstar employees on

verifying data.” As described in the statement of evidence, Ms. Osiemo “stated

that she did know from business records the Plaintiff had possession of the original

documents prior to the Complaint and was therefore entitled to enforce the Note

and Mortgage.”

      Ms. Osiemo’s knowledge “from business records” that Aurora possessed

“the original documents prior to the Complaint” does not establish that Aurora had

standing to enforce the note on February 7, 2008, the date the initial complaint was

                                         9
filed. The statement describing the Nationstar employee’s testimony does not

indicate any personal knowledge she might have of any processes of Aurora,

MERS, or 123Loan. Her opinion, based on her review of unspecified “business

records,” that Aurora “had possession of the original documents prior to the

Complaint” and was “therefore entitled to enforce” the instruments does not

overcome the actual allegation in the original complaint that Aurora did not

possess the note on February 7, 2008; the Corporate Assignment of Mortgage

attached to the amended complaint which showed the note and mortgage were not

assigned by MERS to Aurora until April 9, 2008, two months after the original

complaint was filed; and Aurora’s failure to file the undated blank indorsement and

corporate assignment of mortgage until 2011 as opposed to at the time of filing the

initial complaint.

      It is possible for a witness to provide sufficient testimony to prove standing

where the documentary evidence is insufficient. Stone v. BankUnited, 115 So. 3d

411 (Fla. 2d DCA 2013). In this case, however, the description of Ms. Osiemo’s

testimony in the approved statement of the evidence does not amount to competent,

substantial evidence to remedy the deficiencies and clear contradictions to her

testimony contained in the undisputed documentary evidence. Our de novo review

of the documentary evidence in the record and the statement of evidence and

proceedings approved by the trial court compels us to conclude that the evidence

                                        10
was insufficient to establish that Nationstar’s predecessor plaintiff, Aurora, had

standing to enforce the note via an action for foreclosure on February 7, 2008.

Accordingly, the evidence in the record was insufficient to support the final

judgment of foreclosure in favor of Nationstar due to the insufficient evidence to

establish the predecessor plaintiff’s standing. 1

      The final judgment of foreclosure in favor of Nationstar is REVERSED.

ROBERTS and SWANSON, JJ., CONCUR.




1
 We are mindful of the perception that certain delinquent borrowers might enjoy a
“windfall” where a foreclosure plaintiff is required to prove standing to enforce a
note at the time the initial complaint is filed, but the filing of a new suit when
standing has been acquired would take place more than five years after the alleged
default. See § 95.11(2)(c), Fla. Stat. Proof of entitlement to enforce a note secured
by a mortgage can be problematic in “this era of securitization of mortgage debt
and computerized banking.” Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308,
312 (Fla. 2d DCA 2013) (Altenbernd, J., concurring). However, as Judge
Altenbernd observed, “[i]n this case and numerous other cases, the financial
institutions have brought these problems upon themselves by the complex methods
of securitization and their own sloppy recordkeeping.” Id., at 313 (Altenbernd, J.,
concurring). We further note that many foreclosure actions languish due to the
plaintiffs’ failure to prosecute cases in a timely manner and not from any
wrongdoing by the borrower. Once a defendant contests the plaintiff’s standing as
the proper party to enforce a note via foreclosure, the plaintiff’s right to bring suit
on the note at the requisite time becomes a disputed issue the plaintiff must prove.
Gee v. U.S. Bank, N.A., 72 So. 3d 211, 213 (Fla. 5th DCA 2011). It is not
inequitable to require a plaintiff to prove its case, beginning with its standing to
bring the action at the outset when that status is challenged.
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