Professional Documents
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Initial Brief-FINAL For Filing Peacock
Initial Brief-FINAL For Filing Peacock
STATE OF FLORIDA
vs.
Appeal from a Final Order of the Circuit Court of Walton County, Florida
TABLE OF CONTENTS....i
SUMMARY OF ARGUMENT..........................................................................5
STANDARD OF REVIEW................................................................................6
ARGUMENT. 7
i
records of the United States Office of the Comptroller of the Currency
and of the Federal Reserve Board that provided essential facts relevant
to a determination of whether the blank indorsement on the promissory
note was valid and whether Appellee was the holder of the Note entitled
to foreclose the related mortgage at the time this action was filed..20
CONCLUSION................................................................................................ 22
CERTIFICATE OF SERVICE......................................................................... 24
Bennett v. Deutsche Bank Nat. Trust Co., 124 So. 3d 320 (Fla. 4th DCA
2013)..14
Bouskila v. M & I Bank, Case No. 1D10-2127 (Fla. 1st DCA 2011)13
Brandauer v. Publix Super Markets, Inc., 657 So.2d 932 (Fla. 2d DCA
1995).12
CAC- Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434 (Fla. 3d
DCA 1994)...14
Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553 (Fla. 1st D.C.A. 2006).6
ii
Carpenter v. State, 785 So.2d 1182, 1201 (Fla., 2001)7
Castaneda v. Redlands Christian Migrant Ass'n Inc., 884 So.2d 1087, 1093
(Fla. App., 2004)..7
Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310-311 (Fla. 2d DCA
2013)...10,23
Gee v. U.S. Bank Nat. Ass'n, 72 So. 3d 211, 214 (Fla. 5th DCA 2011)....8
Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1st D.C.A. 2004)...7
Jones v. First Nat'l Bank in Fort Lauderdale, 226 So.2d 834, 835
(Fla. 4th Dist.Ct.App.1969)..8,13
Jones v. Seaboard C.L.R. Co., 297 So. 2d 861, 863 (Fla. DCA 2nd 1974).....12
Kiefert v. Nationstar Mortg.LLC, 153 So. 3d 351, 353 (Fla. 1st DCA
2014).23
Klonis v. Dep't of Revenue, 766 So.2d 1186 (Fla. 1st D.C.A. 2000).....7
iii
Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178 (Fla. 3d DCA 1985)...8,11
Lloyd v. Bank of New York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015)..7
McDonalds Rests. of Fla., Inc. v. Doe, 87 So. 3d 791, 793 (Fla. 2d DCA
2012)...11
Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc, 743 So.2d
627 (Fla. 1st D.C.A. 1999)...7
Murray v. HSBC Bank, 40 Fla. L. Weekly D239 (Fla. 4th DCA Jan. 21,
2015)....9
Nedeau v. Gallagher, 851 So.2d 214, 216 (Fla. 1st DCA 2003)11
Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610-
611 (Fla. 4th DCA 1975)....19
Rojas v. Ryder Truck Rental, Inc., 641 So.2d 855, 857 (Fla.1994)18
Russell v. Aurora Loan Services, LLC, 164 So. 3d 639, 642 (Fla. 2d DCA
2015).....7
Smith v. Southern Baptist Hospital, 564 So.2d 1115, 1118 (Fla. 1st DCA
1990)...19
Societe Euro - Swisse v. Citizens & Southern International Bank, 394 So.
iv
2d 533 (Fla. 3d DCA 1981)..12
Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2nd DCA 2010)..13
Wells Fargo Bank, N.A. v. Bohatka, 112 So. 3d 596 (1st DCA, 2015)..9
Weyant v. Rawlings, 389 So. 2d 710, 711 (Fla. DCA 2nd 1980).12
Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla. 4th DCA
1975)..8
F.S. 671.201(21)(a)....9
UCC 3.308(a)......16, 17
UCC 1.20616
v
STATEMENT OF THE CASE AND THE FACTS
a Final Judgment of Foreclosure entered after trial on January 6, 2017 by the First
Judicial Circuit Court in and for Walton County, Florida in favor of the Appellee,
U.S. Bank National Association, as Trustee for Mastr Adjustable Rate Mortgage
2, 2017. (R 1362 1382) The notice of appeal includes the following orders that
Countrywide Bank, N.A. from Carolina First Bank; a special indorsement from
blank indorsement from Countrywide Home Loans, Inc. was attached to the
Complaint. (R 18 51)
In the Complaint, U.S. Bank alleges that the Appellee was a trust and that
the trust was the holder of the Peacock Note and entitled to foreclose the related
answer included an affirmative defense denying that Appellee was the holder of
the Peacock Note at the commencement of the action, denying that Appellee was
entitled to foreclose the Peacock Mortgage and asserting that Appellee lacked
standing to foreclose when the complaint was filed because the Note was not
endorsed in blank and was not transferred to the possession of the Appellee by
2
February , 2007, the date specified for the transfer of promissory notes, in the
91)
Appellants timely filed a request for judicial notice of the Appellees PSA
which request was granted by the trial court on June 16, 2016. A copy of the PSA
was attached to Appellants March 16, 2016 notice of filing and was also
introduced by Appellee at trial and admitted into evidence. (R 316 319, Sup R
1397 - 1546). Article 2 of the PSA requires that promissory notes have to be
delivered to the trustee for Appellee endorsed in blank (or otherwise duly
closing date of the trust which is identified in the PSA as February 27, 2007.
Appellants also timely filed a request for judicial notice of a Federal Reserve
for Judicial Notice, and Federal Reserve System Board of Governors Order
Activities filed with this Court contemporaneously herewith) The request was
3
filed by Appellants to secure admission of records of the United States containing
facts supporting their challenge to the validity of the blank indorsement on the
Note and the lack of a transfer to Appellee before the trusts February 27, 2007
closing date. The Federal Reserve record and the OCC order establish
Countrywide Bank, N.A., was not acquired by Bank of America, N.A. until 2008,
after the Appellees February 27, 2007 closing date. This date of acquisition is
material to the issue of whether the blank indorsement was placed on the Peacock
Note before the 2007 closing date of the trust. Appellants sought to prove through
party and nonparty discovery which discovery was also improperly denied by
order of the trial court that the blank indorsement was placed on the Note by
At trial, Appellee did not introduce any evidence the blank indorsement was
placed on the Note by a holder in possession, nor that it was endorsed before the
February 27, 2007 closing date of the Trust. Appellees only trial witness, a
4
the possession of Bank of America, N.A. through service of a subpoena duces
tecum for deposition, in order to identify the specific date when the blank
indorsement was placed on the Note. Appellants also served a subpoena duces
tecum for deposition on Wells Fargo Bank, the custodian named in the PSA,
seeking discovery of the initial and final certifications issued by the trustee
pursuant to the PSA. Said discovery would establish whether or not as required
by the PSA the Peacock Note was endorsed and Appellee possessed the requisite
assignment of mortgage, all by the closing date; and, further, whether the mortgage
loan schedule required by the PSA included the Peacock mortgage loan with 40
duces tecum for deposition served on Bank of America, N.A., and Wells Fargo
Bank, and granted the Banks and the Appellees motions for protective order
SUMMARY OF ARGUMENT
The trial court abused its discretion and acted contrary to Florida law
disputed and incomplete evidence which failed to establish Appellee was the
5
The trial court acted contrary to law and abused its discretion thereby
indorsement on the promissory note was valid and whether Appellee was the
holder of the Note entitled to foreclose the related mortgage at the time this action
was filed.
The trial court acted contrary to law and abused its discretion thereby
records of the United States Office of the Comptroller of the Currency and of the
determination of whether the blank indorsement on the promissory note was valid
and whether Appellee was the holder of the Note entitled to foreclose the related
STANDARD OF REVIEW
The Final Judgment of Foreclosure and the orders rendered by the trial court
which quashed Appellants discovery efforts, and refused to take notice of Federal
Reserve and OCC records, are contrary to law and constitute an abuse of judicial
discretion and reversible error. The standard of review of pure questions of law is
de novo. DAngelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003), Armstrong v.
Harris, 773 So.2d 7 (Fla. 2000), Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553
6
(Fla. 1st D.C.A. 2006), Mgmt. Computer Controls, Inc. v. Charles Perry Constr.,
Inc, 743 So.2d 627 (Fla. 1st D.C.A. 1999), Jacobsen v. Ross Stores, 882 So.2d 431
(Fla. 1st D.C.A. 2004), Klonis v. Dep't of Revenue, 766 So.2d 1186 (Fla. 1st
D.C.A. 2000) (Review of a pure question of law is de novo.) Questions of law are
subject to a de novo standard of appellate review. Reinish v. Clark, 765 So.2d 197
Castaneda v. Redlands Christian Migrant Ass'n Inc., 884 So.2d 1087, 1093 (Fla.
App., 2004), Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), and Carpenter
Argument No. 1
It was reversible error, an abuse of discretion and a departure from the essential
requirements of the law for the trial court to enter a foreclosure judgment based on
conflicting, disputed and incomplete evidence on the material issue of whether
Appellee was a holder of the Note when the action was filed.
Lloyd v. Bank of New York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015) A plaintiff
alleging standing as a holder of a negotiable note must prove it holds the note when
the foreclosure is filed. Russell v. Aurora Loan Services, LLC, 164 So. 3d 639, 642
(Fla. 2d DCA 2015) This principle of law and the obligation to produce and
7
The party seeking foreclosure must present evidence it owns and holds the
So. 3d 1129 (Fla. 1st DCA 2011); see, also, Gee v. U.S. Bank Nat. Ass'n, 72 So. 3d
211, 214 (Fla. 5th DCA 2011); Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178
(Fla. 3d DCA 1985) (a real party in interestis the person in whom rests, by
substantive law, the claim sought to be enforced); Your Construction Center, Inc.
v. Gross, 316 So. 2d 596 (Fla. 4th DCA1975) (Defendants in foreclosure actions
may dispute the Plaintiffs claim that it is the owner and holder of the note and
claim that is was the holder of the Note or the owner of the mortgage, and they are
v. Gross, Id.
Under Florida law, because Appellee is a trust, it is the PSA, which controls
and sets forth all the rights, powers, obligations, and duties of Appellee. The PSA
defines when and how the Appellee can become a holder of a promissory note or
the owner of a mortgage. Jones v. First Nat'l Bank in Fort Lauderdale, 226 So.2d
834, 835 (Fla. 4th Dist.Ct.App.1969) (The duties, powers and liabilities
oftrustees are ordinarily fixed by the terms of the trust agreementthe trust
8
itselfconstitutes the charter of the trustees powers and duties. From the trust, the
trustee derives the rule of his conduct, the extent and limit of his authority, the
measure of his obligation). A trustee of a trust only has authority to exercise the
powers as (a) are conferred upon him in specific words by the terms of the trust,
or (b) are necessary or appropriate to carry out the purposes of the trust and are not
(1959). See, also, Murray v. HSBC Bank, 40 Fla. L. Weekly D239 (Fla. 4th DCA
Jan. 21, 2015) and Wells Fargo Bank, N.A. v. Bohatka, 112 So. 3d 596 (1st DCA,
2015).
Evidence establishing: the Peacock Note was transferred into Trust by the
closing date; and, the Peacock mortgage loan is listed in the pooling and servicing
agreement is required for Appellee to establish it had standing when it filed its
DCA 2016). As in Powers, U.S. Bank filed this foreclosure in its capacity as
trustee under a Pooling and Servicing Agreement which U.S. Bank entered into
evidence at trial. The Appellees only witness did not testify as to whether, or on
what date, the Peacock Note and Mortgage were transferred to the Appellee Trust,
In its complaint, Appellee claims to be the holder of the Note. Under F.S.
671.201(21)(a) and the PSA, Appellee can only be the holder of the Peacock
9
Note, if the Note bears: a special indorsement in its favor; or, a blank indorsement
the February 27, 2007 closing date. Appellee did not present any evidence at trial
that it was the holder of the note by the closing date, or that it was the holder of the
Note at the time it filed the complaint, or at the time of trial. Focht v. Wells Fargo
Bank, N.A., 124 So. 3d 308, 310-311 (Fla. 2d DCA 2013) (in order to establish
standing, the bank was required to submit evidence it possessed the original note
Article 2.01 of the PSA in this case requires, in order for the Peacock
Note to be an asset of the trust, the original Note endorsed in blank had to be
transferred to the trust together with a duly executed assignment of the Mortgage
by the closing date of the trust. Appellee cannot be an Article 3 holder under the
PSA until there is a transfer of the Note and an assignment of the mortgage as
required by the PSA. The PSA defines Mortgage Note as [t]he original
Mortgage Loan.
Article 2.01 of the PSA limits by content and timing how and
when promissory notes can be transferred into the trust. Article 2 of the PSA
with respect to each Mortgage Loan... the original Mortgage Note endorsed by
10
manual or facsimile signature in blank, together with a duly executed
assignee thereof by the closing date of the Trust. Additionally, Article 2.02 of
the PSA, requires the Custodian execute and deliver to the Trustee, an Initial
Certification at the closing date of the Trust, and a Final Certification within ninety
(90) days of the closing date, listing all nonconforming conveyance documents.
The record in this case is devoid of any evidence to support the trial courts
finding that Appellee was the holder of the Peacock Note under the PSA, or that
Appellee was entitled to enforce the Note and foreclose the related mortgage when
the complaint was filed or at trial. The lack of evidence renders the trial courts
judgment in this case contrary to law and an abuse of judicial discretion. See,
Nedeau v. Gallagher, 851 So.2d 214, 216 (Fla. 1st DCA 2003); and, Kumar Corp.
v. Nopal Lines, Ltd., 462 So.2d 1178, 1182-83 (Fla. 3rd DCA 1985).
Argument No. 2
The trial court acted contrary to law, abused its discretion, and committed
reversible error by denying Appellants their right to discovery of documents
relevant to a determination of whether the blank indorsement on the promissory
note was valid and whether Appellee was the holder of the Note entitled to
foreclose the related mortgage when this action was filed.
Fla., Inc. v. Doe, 87 So. 3d 791, 793 (Fla. 2d DCA 2012). A party to an action
may obtain discovery regarding any matter, not privileged, that is relevant to the
11
subject matter of the pending action, whether it relates to the claim or defense of
the party seeking discovery or the claim or defense of any other party. Florida
Weyant v. Rawlings, 389 So. 2d 710, 711 (Fla. DCA 2nd 1980); and, Jones v.
Seaboard C.L.R. Co., 297 So. 2d 861, 863 (Fla. DCA 2nd 1974).
In this case, the trial court erred as a matter of law and abused its discretion
Publix Super Markets, Inc., 657 So.2d 932 (Fla. 2d DCA 1995); Singer v. Star, 510
So.2d 637 (Fla. 4th DCA 1987); Societe Euro - Swisse v. Citizens & Southern
International Bank, 394 So.2d 533 (Fla. 3d DCA 1981); and, Commercial Bank of
admissible evidence, and there was no lawful basis or good cause for the trial court
to deny the discovery about when the indorsement was placed on the Note. First
12
Additionally, the discovery Appellants sought from Wells Fargo Bank, the
custodian listed in the PSA, was also a proper inquiry to discover whether the
of the mortgage in conformity with the PSA by the 2007 closing date. Jones v.
Wells Fargo Bank, pursuant to a subpoena duces tecum included the Mortgage
Loan Schedule defined in the PSA as the list of mortgage loans transferred to the
trust, and the initial and final certifications issued by Wells Fargo, as the custodian.
The mortgage loan schedule, and the certifications from the custodian of the Trust,
are essential evidence to a determination whether Appellee was the holder of the
Peacock Note endorsed in blank and the owner of the Peacock mortgage when it
filed its complaint. See, Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2nd
DCA 2010); and, Bouskila v. M & I Bank, Case No. 1D10-2127 (Fla. 1st DCA
2011)
than just attach a blank endorsed copy of a promissory note to its complaint.
Reference to the PSA, the mortgage loan schedule listing the Peacock Note, and
the custodian certifications, are essential evidence required for Appellee to prove it
held the Note when the action was filed. The redacted schedule of loans presented
13
by Appellee at trial was hearsay and not the schedule of loans defined in the PSA.
The redacted document does not contain the forty (40) separate items of loan data
indorsement was valid or genuine and no presumption applies to establish that the
blank indorsement appearing on the Peacock Note was genuine. Appellee, as the
party seeking to establish its status as the holder of order paper, had to prove the
validity of the blank indorsement on which its status depends. Ederer v. Fisher,
essential to proving the blank indorsement on the Peacock Note was not placed
until after the trust closed to new assets in 2007. The courts orders denying
Appellants discovery from Bank of America, N.A. and from Wells Fargo Bank
Bennett v. Deutsche Bank Nat. Trust Co., 124 So. 3d 320 (Fla. 4th DCA 2013);
and, CAC- Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434 (Fla. 3d DCA
1994).
14
Fargo Bank questioning the validity of the assignment of the lien on the ground
that the assignment pre-dated the notarized signature of the debtor on the note and
the DOT by three days. Debtor also claimed that the blank indorsement on the note
was stamped on the Note after Wells Fargo filed its initial proof of claim in an
attempt to improve the record with respect to Wells Fargos standing to enforce the
Note. After Debtors counsel questioned Wells Fargos standing, Wells Fargo
filed an amended proof of claim, which was the same as the first claim except that
the copy of the Note attached to the claim had a second indorsement (in addition
Carssow-Franklin, supra.
standing as a holder of the note, the bankruptcy court ruled that Wells Fargo did
not satisfy its burden to show that the blank indorsement on the Note attached to
the amended claim was genuine and entered an Order disallowing and expunging
both claims filed by Wells Fargo. Id. The district court looked to Texas UCC law
to determine whether Wells Fargo was an interested party based on the Texas
choice of law provision in the DOT and found that [u]nder Texas law, in order to
determine that a holder of a note indorsed in blank has standing to enforce the
notethe critical question before thecourt was the authenticity of the blank
15
indorsement on the Note. In re Carssow-Franklin, supra.
The bankruptcy court, finding that the Debtor had provided sufficient
evidence to overcome (and defeat) the Texas UCCs presumption in favor of the
authenticity of indorsementsdetermined that Wells Fargo did not carry its burden
to establish the authenticity of the indorsement. Id. Texas law is the same as the
law in Florida in that it is the holder who is entitled to enforce a note. Holder
also has the same definition under Texas and Florida law (and the UCC more
unless in an action seeking to enforce the note, the authenticity and validity of the
The general article, UCC 1.206, provides that a fact is presumed unless
the bankruptcy court was required to find the blank indorsement to be authentic
inauthenticity and that because the ultimate burden of establishing validity of the
to overcome the presumption, the burden shifts back to the person claiming to be a
16
evidence. In re Carssow-Franklin, supra.
In the present case, by refusing to take judicial notice of the Federal Reserve
record and by denying Appellants discovery from Bank of America and from
Wells Fargo Bank, Appellants were prejudiced by the court in their reasonable
efforts to discover and present evidence proving the blank indorsement on the Note
was not valid and not authorized. The showing necessary to overcome the
In this case, Appellants presented lawful justification for the court to take
judicial notice of the Federal Reserve Record and for the nonparty discovery that
directly concerned the timing of the placement of the indorsement on the Note and
also the certifications and mortgage loan schedule required by the PSA. The trial
courts orders concerning these matters are contrary to law and abuses of discretion
UCC suggests that the required evidentiary showing to overcome the presumption
17
Appellants thwarted discovery was not based on speculation or conclusory
allegations, but was based on competent and specific facts, which if proved, would
validity. The court acted contrary to law and abused its discretion by drawing the
inference that the blank indorsement on the Peacock Note was valid, by refusing to
reasonable discovery and by not affording them the right to shift the burden to
In the present case, the facts disclosed in the record through the PSA,
combined with Appellants specific affirmative defense that the Appellee lacked
standing and that the blank indorsement was not timely or valid, provided a proper
foundation for judicial notice of the Federal Reserve record and for the discovery
regarding the mortgage loan schedule and the timing and placement of the blank
would expect that a large banking and financial services company would have
readily accessible evidence by which it could establish the timing and validity of
18
protective orders. Rojas v. Ryder Truck Rental, Inc., 641 So.2d 855, 857
(Fla.1994). But, in this case, the record discloses that Appellants plainly
demonstrated the relevance of the documents sought in discovery and that there
was no showing that the discovery was being deployed as to harass, or for any
other unacceptable purpose. As a result, the trial court abused its broad discretion
by denying the limited discovery at issue, in issuing the orders denying Appellants
discovery of the initial and final certifications, the mortgage loan schedule under
the PSA, and the documents showing when the blank indorsement was placed on
the Note. The orders denying this discovery to Appellants depart from the
essential requirements of law. Full discovery is the rule and parties are entitled to
discover relevant facts so long as those facts might lead to the discovery of
showing of good cause, which showing was not made in this case. Deltona
Corporation v. Bailey, 336 So.2d 1163, 1169 (Fla.1976); Smith v. Southern Baptist
Hospital, 564 So.2d 1115, 1118 (Fla. 1st DCA 1990); and, Orlando Sports
Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610-611 (Fla. 4th DCA 1975)
The trial court abused its discretion acting contrary to Fla. R. Civ. P. 1.280,
conduct this crucial discovery before trial in the way that it did, subject to renewal
19
at trial upon the establishment of relevance of the noticed documents, the court
did not follow the law. The discovery Appellants sought from Appellee, and
nonparties, Bank of America, N.A, and Wells Fargo Bank, before trial, was
targeted to elicit facts which were material and directly relevant to their defenses,
to wit: the affirmative defense that the blank indorsement was not valid; that the
Appellee was not a holder of the Note; and, that the Peacock Note and Mortgage
were not assets of Appellee. All of the facts bear on a determination of whether
The concept of relevance is broader in the discovery context than in the trial
carefully explained to the court the bases for their requests for this discovery, and it
was incumbent on the trial court to exercise it is broad discretion under the rules to
authorize the requested discovery in such a way which would accommodate the
The trial court should have allowed the discovery while imposing any needed
that would have allowed them to present admissible evidence in support of their
Argument No. 3
The trial court acted contrary to law, abused its discretion and committed
20
reversible error by denying Appellants request for judicial notice of records of the
United States Office of the Comptroller of the Currency and of the Federal Reserve
Board that provided essential facts relevant to a determination of whether the blank
indorsement on the promissory note was valid and whether Appellee was the
holder of the Note entitled to foreclose the related mortgage at the time this action
was filed.
The Federal Reserve record, and the OCC order, like the trustee
certifications and documents showing the date the blank indorsement was placed
on the Note and the mortgage loan schedule, all contain relevant evidence
concerning when and by whom the indorsement was placed on the Peacock Note
and whether the blank indorsement was valid. Florida Statutes, 90.202 provides
authority for the court to take judicial notice of records of executive departments of
the United States, and F.S. 90.202(5) allows that court to take judicial notice of
Under this statute, the trial court was authorized to take judicial notice of the
OCC Order because it is a public document of the United States Treasury; and, of
the Federal Reserve record because it is an order that is a public document issued
Copies of the OCC Order and the Federal Reserve record were attached to
Appellants requests for judicial notice thereby furnishing the court with sufficient
information to enable it to take judicial notice of the facts contained therein. The
OCC Order and the Federal Reserve record, confirm that Bank of America
21
Corporation merged Countrywide Bank, FSB with Bank of America, N.A in 2008;
and, upon the merger, Countrywide Bank, FSB was converted to Countrywide
Under Florida Statutes 90.202 and 90.203, which are part of the Florida
Evidence Code, the trial court was required to take judicial notice of the OCC
Order and the Federal Reserve record. The requests properly informed the court
about the content of the public records of departments of the United States, and
Appellee was given timely written notice of the requests. The Federal Reserve
record and the OCC order attached to Appellants request for judicial notice are
also relevant to the issue of whether the blank indorsement was made by a holder
The trial court acted contrary to law and abused its discretion causing
admissible evidence bearing on the timing and validity of the blank indorsement.
The admissibility and evidentiary value of the OCC order and the Federal Reserve
record are not subject to reasonable dispute and no harm or prejudice to Appellee
would have resulted from admission of these records of the United States.
CONCLUSION
There was no evidence presented at trial that the Appellee trust held a blank
22
endorsed note when it filed this action. Appellee failed to present the court with
substantial competent evidence that it was the holder of the note at the time it
filed the foreclosure complaint. Eagles Master Assn Inc. v. Bank of Am., N.A., 40
Fla. L. Weekly D1510, at 2 (Fla. 2d DCA June 26, 2015), citing, Kiefert v.
Nationstar Mortg.LLC, 153 So. 3d 351, 353 (Fla. 1st DCA 2014); and, Focht v.
The trial court abused its discretion, acted contrary to applicable law and
Appellants requests for judicial notice and by awarding a final summary judgment
to Appellants outside the bounds of Florida law and should be reversed and
vacated.
RESPECTFULLY SUBMITTED,
23
Certificate of Service
WE HEREBY CERTIFY the foregoing is being e-filed with the Court this
th
12 day of June, 2017; and true and correct copy(ies) thereof being furnished, as
indicated, to:
Certificate of Compliance
24