           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


BANK OF AMERICA, N.A., ETC.,

              Appellant,

 v.                                                     Case No. 5D14-4511

LINDA A. NASH, ET AL.,

              Appellees.

________________________________/

Opinion filed May 6, 2016

Appeal from the Circuit Court
for Seminole County,
Robert J. Pleus, Jr., Senior Judge.

Mary J. Walter, of Liebler Gonzalez
& Portuondo, Miami, for Appellant.

John G. Pierce, of Pierce & Associates,
PLC, Orlando, for Appellee, Linda A. Nash.

Shawn Timothy Newman, Olympia, Pro
Hac Vice, for Appellee, Homeowners
SuperPAC.


PER CURIAM.

       Bank of America, N.A. (“Bank”), as successor by merger to BAC Home Loans

 Servicing, LP f/k/a Countrywide Home Loans Servicing, LP, appeals the trial court’s final

 judgment denying its foreclosure action against Linda A. Nash, invalidating the note and
mortgage, ordering a refund of all mortgage payments, and awarding attorney’s fees to

Nash. We reverse.

      In 2005, Nash executed a promissory note secured by a mortgage in favor of

America’s Wholesale Lender (“AWL”). Countrywide Home Loans, Inc., “a New York

Corporation Doing Business as America’s Wholesale Lender,” subsequently indorsed

the note in blank, and MERS, as nominee for AWL, assigned the mortgage to BAC

Home Loans Servicing, LP, formerly known as Countrywide Home Loan Servicing, LP

(“BAC”). In 2010, BAC sent a notice of default to Nash. When Nash failed to cure the

default, Bank, successor by merger to BAC, filed a mortgage foreclosure complaint

against her, alleging that all conditions precedent had been performed. Copies of the

original mortgage and note, acceleration notice, and assignment of mortgage were

attached to the complaint. Nash filed an answer and affirmative defenses, alleging that

Bank did not have standing to foreclose and that the note and mortgage were invalid

because both documents and the indorsement delineated AWL as both a corporation

and a fictitious name.

      Following a trial, the trial court entered a final judgment in favor of Nash, finding

that Bank did not have standing to bring the action and that the note and mortgage were

void because AWL was not incorporated when the loan was made, was not a licensed

mortgage lender in Florida, and did not have authority to do business in Florida. The

trial court then ordered Bank to repay to Nash all sums that she had paid on the note

and mortgage as well as her attorney’s fees.

      “A crucial element in any mortgage foreclosure proceeding is that the party

seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP




                                            2
Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) (finding that,

to establish standing, plaintiff must show it held or owned note at time complaint was

filed). Under section 673.3011, Florida Statutes (2011), a person entitled to enforce the

note and foreclose on a mortgage is the holder of the note, a non-holder in possession

of the note who has the rights of a holder, or a person not in possession of the note who

is entitled to enforce under section 673.3091, Florida Statutes. Thus, “[t]he party that

holds the note and mortgage in question has standing to bring and maintain a

foreclosure action.” Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So. 3d 81, 84 (Fla. 5th DCA

2012). If the note does not name the plaintiff as the payee, the note must bear a special

indorsement in favor of the plaintiff or a blank indorsement. See Riggs v. Aurora Loan

Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010).

       “A trial court's decision as to whether a party has satisfied the standing

requirement is reviewed de novo.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91,

116 (Fla. 2011). We conclude that the trial court erred in finding that Bank did not have

standing to bring this action.    According to the unrebutted testimony from Chad

Anderson, a mortgage resolution associate with Bank who was familiar with the subject

loan and its records, Bank, or entities that merged into Bank, had always serviced the

loan. He identified AWL as the original lender and Countrywide as the original loan

servicer.   He testified that AWL was “a business entity or a business name under

Countrywide” and that Countrywide, a New York corporation, was doing business as

AWL. Mr. Anderson testified that Countrywide serviced the loan from commencement

until April 27, 2009, when its name changed to BAC. In July 2011, BAC merged into




                                           3
Bank. Thus, the evidence shows that the loan was never transferred, and Bank, as a

result of the merger with BAC, had standing to foreclose.

       In its final judgment, the trial court also found that AWL was not licensed or

authorized to do business in Florida. This was not raised as an affirmative defense, and

no record evidence establishes that AWL or Countrywide was not licensed as a

mortgage lender in 2005. Even if AWL was required to obtain a license and did not do

so, disciplinary measures for such a violation would include, among others, a fine or

reprimand.1 §§ 494.0025, 494.0072, Fla. Stat. (2005). The failure to comply with the

licensing requirement would “not affect the validity or enforceability of any mortgage

loan . . . .” § 494.0022, Fla. Stat. (2005). Likewise, while section 607.1501(1), Florida

Statutes (2005), prohibits a foreign corporation from transacting business in Florida until

it obtains a certificate of authority from the Department of State, activities including


       1While it is unlawful for any person to act as a mortgage lender in Florida without
a current active license, see section 494.0025(1), Florida Statutes (2005), there are
exceptions for

              (a) A bank, bank holding company, trust company, savings
              and loan association, savings bank, credit union, or
              insurance company if the insurance company is duly
              licensed in this state.

              (b) Any person acting in a fiduciary capacity conferred by
              authority of any court.

              (c) A wholly owned bank holding company subsidiary or a
              wholly owned savings and loan association holding company
              subsidiary that is approved or certified by the Department of
              Housing and Urban Development, the Veterans
              Administration, the Government National Mortgage
              Association, the Federal National Mortgage Association, or
              the Federal Home Loan Mortgage Corporation.

§ 494.006(1)(a)-(c), Fla. Stat. (2005).



                                            4
“[c]reating or acquiring indebtedness, mortgages, and security interests in real or

personal property” or “[s]ecuring or collecting debts or enforcing mortgages and security

interests in property securing the debts” do not constitute transacting business.            §

607.1501(2)(g), (h), Fla. Stat. (2005). Thus, even assuming AWL/Countrywide was a

foreign corporation, it did not need to obtain a certificate of authority in order to create or

enforce a mortgage or note.

       The only remaining issue concerns Nash’s claim that AWL was a fictitious name

for Countrywide, if Countrywide failed to register that name. A person may not engage

in business under a fictitious name unless the name is registered with the Division of

Corporations of the Department of State. § 865.09(3), Fla. Stat. (2005). If a business

fails to comply, it and any successors or assigns may not maintain any action, suit, or

proceeding in any court. Id. § 865.09(9)(a). Here, there is no evidence to suggest that

Countrywide failed to register AWL as a fictitious name, but, even so, such a failure to

register “does not impair the validity of any contract, deed, mortgage, security interest,

lien, or act of such business and does not prevent such business from defending any

action, suit, or proceeding in any court of this state.” Id. § 865.09(9)(b).

       The trial court also found that a condition precedent of the foreclosure had not

been met because there was no receipt of the default letter. However, the failure to

perform a condition precedent was not raised in Nash’s affirmative defenses. As a

result, the defense is waived. Fla. R. Civ. P. 1.140(h). Even had it been properly

raised, it was meritless.

       According to Mr. Anderson, the default letter was mailed to Nash at her

designated mailing address. The trial court’s conclusion that Bank was required to




                                              5
establish proof of delivery in order to establish that it met all required conditions

precedent to foreclosure was misplaced. Here, the note states that

              [u]nless applicable law requires a different method, any
              notice that must be given to me under this Note will be given
              by delivering it or by mailing it by first class mail to me at the
              Property Address above or at a different address if I give the
              Note Holder a notice of my different address.

Thus, under the note, notices may be mailed to the property address or to a different

address, if designated.    Bank did so.     The fact that the letter may not have been

received is irrelevant.

       Bank also argues that the trial court erred by granting relief beyond Nash’s

pleadings, specifically, by invalidating the note and mortgage and ordering Bank to

return all prior mortgage payments when Nash never requested this relief. “A trial court

is without jurisdiction to award relief that was not requested in the pleadings or tried by

consent.” Wachovia Mortg. Corp. v. Posti, 166 So. 3d 944, 945 (Fla. 4th DCA 2015).

Therefore, “a judgment which grants relief wholly outside the pleadings is void.” Bank of

N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013); see Mullne v. Sea-Tech

Constr. Inc., 84 So. 3d 1247, 1249 (Fla. 4th DCA 2012). Further, granting relief, which

was neither requested by appropriate pleadings, nor tried by consent, is a violation of

due process. Posti, 166 So. 3d at 945-46. Pleadings sufficient to invoke a court’s

jurisdiction, according to the rules of civil procedure, include a complaint, petition,

counterclaim, crossclaim, and a third-party complaint. Fla. R. Civ. P. 1.100(a).

       We agree that the trial court erred by granting relief that was outside the scope of

the pleadings. Nash alleged in her answer and affirmative defenses that the note and

mortgage were invalid, but no request for repayment was pled.




                                              6
      For these reasons, we reverse the judgment in favor of Nash and remand for

entry of judgment in favor of Bank. We also reverse the award of attorney’s fees in

favor of Nash.

      REVERSED and REMANDED.


ORFINGER, BERGER and EDWARDS, JJ., concur.




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