Tuesday, March 1, 2016

Florida Appeals Court: "Precise Identity Of Each Entity In The Chain Of Transfers Is Crucial" When Bankster Is A 'Nonholder In Possession' Attempting To Foreclose On Note Containing 'Special Indorsement'

From a recent client alert from the law firm Maurice Wutscher LLP:

  • The District Court of Appeal of the State of Florida, Fourth District, recently affirmed the dismissal of a mortgage foreclosure action because the mortgagee failed to present competent, substantial evidence that it had standing to foreclose, due to lack of conformity between the name of the plaintiff mortgagee and the names in the transactional documentation by which the plaintiff mortgagee claimed an interest in the note at issue. [...] The promissory note contained a special indorsement in favor of the mortgagee's predecessor in interest, astrustee.(1)

For the court ruling, see Bank of New York Mellon Trust Company, NA v. Conley, No. 4D14-2430 (Fla. App. 4th DCA, January 6, 2016).
(1) From the court ruling:
  • In this foreclosure case, the trial court granted the borrower's motion for involuntary dismissal because the bank did not present competent substantial evidence of its standing to foreclose. We affirm.

    The record in this case reveals that, at one time or another, at least six different banking entities claimed ownership of the borrower's note. The problem is not the number of entities claiming ownership, but the similarities of their names. Two of the entities are:

    • JP Morgan Chase Bank; and
    • JP Morgan Chase & Co.

     Two others are:

    • Bank of New York Company, Inc.; and
    • The Bank of New York Mellon Trust Company, National Association

     We write to emphasize that when a nonholder in possession attempts to establish its right to enforce a note, and thus its standing to foreclose, the precise identity of each entity in the chain of transfers is crucial.

    At bar, the plaintiff is:

    The Bank of New York Mellon Trust Company, National Association fka The Bank of New York Trust Company, N.A. as Successor to JPMorgan Chase Bank N.A. as Trustee for RASC 2004KS4 [hereinafter "the Bank of New York Mellon"].

    In pursuit of this foreclosure, the Bank of New York Mellon presented an original note bearing a special indorsement in favor of "JP Morgan Chase Bank, as Trustee."