The Fourth District Court of Appeal just released the following two cases on standing:
Bank of N.Y. Mellon Trust Co., N.A. v. Ginsberg, 2017 Fla. App. LEXIS 9647 (Fla. Dist. Ct. App. 4th Dist. July 5, 2017) This is a case where the endorsement on the note was to a slightly different trust name than the plaintiff (pleading lacked the hyphen). The bank moved to amend for scrivener’s error, and the Court denied. Defendant then filed a Motion for Summary Judgment saying plaintiff is not the proper party based on the endorsement and won. Bank offered no evidence in opposition. 4th DCA said that “the fact that the trust identified in the complaint is somewhat different from the trust identified in the special endorsement does not create a defect in standing.” Court remarked that the Bank (of New York Mellon) was properly listed on the endorsement and stated that “[t]o prove standing, a plaintiff is not required to identify or prove the trust on whose behalf the plaintiff acts.” (citing McLean v. JP Morgan Chase Bank Nat’l. Assoc., 79 So.3d 170, 173 (Fla. 4th DCA 2012)). Although this is on summary judgment, it is still important and good news for our trust[ee] plaintiff cases.
United States Bank Nat’l Ass’n v. Kachik, 2017 Fla. App. LEXIS 9642 (Fla. Dist. Ct. App. 4th Dist. July 5, 2017) This case states that an allonge is part of a negotiable instrument, so per the Best Evidence Rule, you must have the original allonge introduced into evidence to enforce the note. It also cites Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So.3d 1044 (Fla. 2nd DCA 2016) for the same proposition. The court did provide a way out if the allonge is lost. They ruled “Because the bank failed to produce the original allonge and did not plead a lost instrument count, we affirm the trial court’s judgment in favor of the homeowner.” Accordingly, if the allonge is lost, a lost instrument count must be included in the complaint to reestablish the missing original allonge.
Bank of N.Y. Mellon Trust Co., N.A. v. Ginsberg
United States Bank Nat’l Ass’n v. Kachik
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For more information on this legal update, please contact:
Zachary Brewer, Esq.
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