May V PHH - Reply Brief (May)

Filing # 11309307 Electronically Filed 03/13/2014 03:00:46 PM
RECEIVED, 3/13/2014 15:03:48, Clerk, Second District Court of Appeal
IN THE DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA SECOND DISTRICT
CASE NO.: 2D12-4533
SUSAN M. MAY,
Appellant,
v.
PHH MORTGAGE CORPORATION,
Appellee.
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AN APPEAL FROM A TRIAL
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
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REPLY BRIEF OF APPELLANT

PETER TICKTIN, ESQUIRE
JOSH BLEIL, ESQUIRE
KENDRICK ALMAGUER, ESQUIRE
SATYEN GANDHI, ESQUIRE
THE TICKTIN LAW GROUP, P.A.
600 West Hillsboro Boulevard
Suite 220
Deerfield Beach, Florida 33441-1610
Telephone: (954) 570-6757
600 WEST HILLSBORO BOULEVARD, SUITE 220, DEERFIELD BEACH, FLORIDA 33441-1610
TELEPHONE: (954) 570-6757
TABLE OF CONTENTS
TABLE OF CITATIONS. 3
ARGUMENT4
I. The BANK Presented No Evidence of Standing to Which the
HOMEOWNER Could or Need to Object. ...4
II. The BANK Failed to Present Evidence that Servicing the Loan was
Evidence of Ownership of the Note...............................................8
CONCLUSION...10
CERTIFICATE OF COMPLIANCE...11
CERTIFICATE OF SERVICE........12
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TELEPHONE: (954) 570-6757
TABLE OF CITATIONS
FLORIDA DISTRICT COURTS OF APPEAL
Cases
Page
Country Place Cmty. Assn v. J.P Morgan Mortg. Acq. Corp.,

51 So.3d 1176 (Fla. 2d DCA 2010) ..........7
Cutler v. US Bank Natl Assn, 109 So.3d 224 (Fla. 2d DCA 2012) ....7
Gonzalez v. Deutsche Bank Natl Trust Co.,
95 So.3d 251 (Fla. 2d DCA 2012) ....7
Green v. JP Morgan Chase Bank, N.A.,
109 So.3d 1285 (Fla. 5th DCA 2013) ...7
Stone v. BankUnited,115 So.3d 411 (Fla. 2nd DCA 2013) ..9
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TELEPHONE: (954) 570-6757
ARGUMENT
I.
The BANK Presented No Evidence of Standing to Which the

HOMEOWNER Could or Need to Object.
In its Answer Brief, the Appellee (hereinafter the BANK) argues that the
Appellant (hereinafter the HOMEOWNER) failed to raise objections to its

introduction at trial of the undated, specifically endorsed original note, and the
payment history. The BANK also argues that because it introduced evidence that it
was the holder and owner of the original note with a specific endorsement, it
proved that it had standing. These arguments attempt to distract from the issues
by the HOMEOWNER in her Initial Brief regarding whether the BANK had
standing to enforce the Note at the time the Complaint was filed. The BANKs
Answer Brief does not point to any competent substantial evidence offered by the
BANK at trial that addressed whether it had standing when the complaint was
filed.
The BANK claims that because it introduced evidence of a specific
endorsement to itself on the original note at trial, it established prima facie
evidence of its standing to foreclose, in the lower court. The HOMEOWNER does
not dispute that at the time of the trial, the BANK presented evidence that it had
standing to foreclose. However, the evidence of an undated specific endorsement
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TELEPHONE: (954) 570-6757
on the original note is not evidence as to when the BANK obtained standing. The
BANK offered no evidence at trial regarding when it became the owner and holder
of the original note, nor when the note was specifically endorsed to it. There was
thus no evidence to which the Appellant could have objected at trial.
The BANK claims that the HOMEOWNER did not present any evidence or
testimony to dispute the original note or the debt it represented. Not objecting to
the introduction of the note itself, with an undated specific endorsement on it, is
not fatal to the HOMEOWNERs contention that the BANK did not have standing
at the time the complaint was filed. That is not what is at issue. The
HOMEOWNERs Initial Brief did not challenge that the original note existed, nor
that a specific endorsement existed, nor that the debt it represented existed. This is
because the original note itself, with an undated endorsement is only proof of the
BANKs standing to foreclose at that time. The undated endorsement on the
original note, by itself, is not relevant to the issue of when the endorsement was
effectuated. Evidence that would be relevant would be evidence that the
endorsement was made prior to the date on which the complaint was filed, or that
the BANK was the owner or holder of the Note at the time the Complaint was
filed.
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TELEPHONE: (954) 570-6757
Nothing approximating testimony of this kind was presented at trial. The

BANK argues that the HOMEOWNER failed to raise contemporaneous objections
during the trial to its competent, substantial evidence. The BANK elicited
absolutely no testimony from its one and only witness that at the time the
complaint was filed, the BANK was the owner or holder of the note, or that the
endorsement on it was effectuated prior to the filing of the complaint. The BANK
chose not to ask its one witness about the timing of the endorsement or anything
else related to the BANKs standing. Thus, there was no evidence, competent,
substantial, or otherwise, presented by the BANK to which the HOMEOWNER
need object regarding standing. The BANK is arguing that the HOMEOWNERs
arguments fail because the HOMEOWNER did not object to evidence of
something that the BANK did not present at trial. This is nonsensical.
The HOMEOWNERs original answer in the lower court raised in its
seventh and eighth affirmative defenses that the BANK was not the owner of the
promissory note, and not the holder of the promissory note. At the time the
Complaint was filed, the copy of the original note attached to the Complaint did
not name the BANK and did not contain any endorsements, and thus there was no
evidence that the BANK was the holder or the owner of the Note. That fact is not
in dispute. At the conclusion of the presentation of its evidence, the BANK had
6
TELEPHONE: (954) 570-6757
not introduced anything to show that it was the owner or holder when the
complaint was filed.
Nor does the BANK present any authority in its Answer Brief to support its
argument that it was the HOMEOWNERs burden at trial to prove that the BANK
did not own or hold the Note at the time the complaint was filed. Again, the
BANK confuses the issue. Many of the decisions cited in the HOMEOWNERs
initial brief, regarding the need for the plaintiff to prove the timing of its standing,
involved motions for summary judgment. Those cases involve a burden of proof
that is higher than what was required of the BANK at trial, as the BANK points
out. But the law is the same. The plaintiff must establish its standing as of the
time of filing its complaint. Country Place Cmty. Assn v. J.P Morgan Mortg. Acq.
Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010). Where that standing is derived
from an endorsement on the note, the plaintiff must submit evidence that it was in
possession of the original note with the endorsement at the time it filed the
complaint. See Cutler v. US Bank Natl Assn, 109 So.3d 224, 225-226 (Fla. 2d
DCA 2012); Gonzalez v. Deutsche Bank Natl Trust Co., 95 So.3d 251, 253 (Fla.
2d DCA 2012); Green v. JP Morgan Chase Bank, N.A., 109 So.3d 1285, 1288
(Fla. 5th DCA 2013).
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TELEPHONE: (954) 570-6757
The BANKs burden at trial was admittedly lower than it would have been
at a hearing on a motion for summary judgment. Nevertheless, it had to show by
the preponderance of the evidence, it was in possession of the original note with
the specific endorsement at the time it filed the complaint. The BANK chose not
to present any evidence of this at all at trial, and thus offered no evidence towards
its burden to prove it had standing. That burden may have been lower than it
would have been at a summary judgment hearing, but it still existed, and the
BANK presented not even a scintilla of evidence regarding its standing at the time
the complaint was filed. It chose to rest its case at trial in the lower court without
doing so.
II.
The BANK Failed to Present Evidence that Servicing the Loan was
Evidence of Ownership of the Note.
The introduction of the payment history is not evidence of when the BANK
became the owner of the note. The payment history established that the BANK
was servicing the loan since the first payment was due on it, and thus prior to the
filing of the complaint, and nothing else. The BANKs one and only witness did
not testify that the BANK owns the notes it services, or only services the notes it
owns. The BANK chose not to elicit any testimony from its only witness that
evidence of when the servicing began was evidence of when the BANK became
the owner of the Note. Introducing evidence of when the BANK began servicing
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TELEPHONE: (954) 570-6757
the loan, whether unrebutted or not, does not somehow equate to evidence of when
the BANK became the owner. Evidence of some link between the two must be
presented.
Thus, the HOMEOWNERs reliance on Stone v. Bank United, 115 So.3d
411 (Fla. 2nd DCA 2013) is not misplaced. At trial, the counsel for the plaintiff in
Stone elicited testimony from its witness, the servicer, that the note was owned by
the plaintiff before the complaint was filed and that the plaintiff only serviced
loans it owned. Stone illustrates a trial in which testimony was specifically elicited
that servicing the loan was evidence of ownership. In stark contrast, the instant
case is one in which at trial, no testimony of any kind was elicited from the
servicer that servicing the loan was evidence of ownership of the note.
The BANKs Answer Brief does not point to any other evidence introduced
at trial showing its standing to foreclose at the time the complaint was filed. The
only argument the BANK makes is that the HOMEOWNER did not object at trial
to the payment history or to the undated, specifically endorsed note. This
argument distracts from the relevant issue before this Court, which is whether the
failure to introduce evidence of ownership of the note before the complaint was
filed at trial should result in a dismissal of a foreclosure action, based on the
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TELEPHONE: (954) 570-6757
pleadings and facts in this case. That is not addressed at all by the BANKs
Answer Brief.
The BANK cannot show that it presented evidence of standing at the time
the complaint was filed. No authority, testimony, or documentation exists to
change that fact. The Answer Brief does not argue that it was not required to
present evidence of ownership at the time the complaint was filed. Instead the
BANK alleges that the BANK did so through the payment history because the
payment history was introduced without objection. The BANKs reliance on the
payment history is misplaced as discussed supra. Without anything else, the
BANK cannot show that it established it had standing at the time the complaint
was filed. This Court should therefore reverse the lower courts ruling.
CONCLUSION
For all of the foregoing reasons, the HOMEOWNER respectfully request
that this Honorable Court reverse the decision of the lower Court, and remand this
matter to the lower Court to enter an order dismissing the action or entering Final
Judgment in favor of the HOMEOWNER.
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TELEPHONE: (954) 570-6757
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing Appellants Brief complies with
Rule 9.100(1) and Rule 9.210(a)(2), Florida Rules of Appellate Procedure, and
that this Brief has been submitted in Times New Roman 14-point font.
Suite 220
Telephone: (954) 570-6757
By: /S/ SATYEN GANDHI

PETER TICKTIN, ESQ.
FLORIDA BAR NO. 887935
JOSHUA BLEIL, ESQ.
KENDRICK ALMAGUER
SATYEN GANDHI, ESQ.
DESIGNATION OF EMAIL ADDRESS(ES) FOR SERVICE

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TELEPHONE: (954) 570-6757
(Pursuant to Rule 2.516 Fla. R. Jud. Admin.)

The undersigned attorneys of The Ticktin Law Group, P.A., hereby designate the
following Email Address(es) for service in the above styled matter. Service shall be
complete upon emailing to the following email address(es) in this Designation, provided
that the provisions of Rule 2.516 are followed.
Serv517@LegalBrains.com
SERVICE IS TO BE MADE TO EACH AND EVERY EMAIL ADDRESS
LISTED IN THIS DESIGNATION AND TO NO OTHERS.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been emailed this 13th day of March, 2014, to ELIZABETH T. FRAU,
ESQUIRE, eservice@wolfelawfl.com, Attorneys for the Appellee, Ronald Wolfe
& Associates, P.O. Box 25018 Tampa, Florida 33622.
Suite 220
Telephone: (954) 570-6757
/s/ __ Satyen Gandhi________

SATYEN GANDHI
Florida Bar No. 18108
Our Matter No.: 13-0437
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TELEPHONE: (954) 570-6757

May V PHH - Reply Brief (May)

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Filing # 11309307 Electronically Filed 03/13/2014 03:00:46 PM

RECEIVED, 3/13/2014 15:03:48, Clerk, Second District Court of Appeal

IN THE DISTRICT COURT OF APPEAL OF THE STATE

REPLY BRIEF OF APPELLANT

Country Place Cmty. Assn v. J.P Morgan Mortg. Acq. Corp.,

The BANK Presented No Evidence of Standing to Which the

Appellant (hereinafter the HOMEOWNER) failed to raise objections to its

Nothing approximating testimony of this kind was presented at trial. The

By: /S/ SATYEN GANDHI

DESIGNATION OF EMAIL ADDRESS(ES) FOR SERVICE

(Pursuant to Rule 2.516 Fla. R. Jud. Admin.)

/s/ Satyen Gandhi______

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