Appellate Court Reverses Broward County Judge Ireland’s Judgment for the Borrower and Finds for the Plaintiff.


The Florida Fourth District Court of Appeal issued a ruling this week confirming the idea of a rebuttable presumption of possession of a fully endorsed note if the copy of the note attached to the complaint is a true and accurate copy of the original note produced at trial.

The opinion also states that a witness who appears on behalf of the servicer, has the legal, cognizable ability to testify as to the facts for which they have personal knowledge (i.e. personal review of business records).

U.S. Bank National Association, as Trustee for the Holders of CSAB 2007-1 v. Richard Clarke –  No. 4D14-3398 – 4th District Court of Appeals Florida (May 25, 2016)

The borrower was awarded Judgment at a non-jury trial for two reasons:

  • The Power of Attorney introduced into evidence did not name the Plaintiff in the instant case.
  • There was no evidence introduced that the Plaintiff was in possession of the note at the time the lawsuit was filed.

The Appellate Court’s analysis of the case found that the copy of the note attached to the complaint filed was in the same condition as the original note introduced into evidence and reinforces its earlier holding in Ortiz v. PNC Bank, National Association, WL 1239760, where the court found that “the combination of such evidence is sufficient to establish that the

[plaintiff] had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary. ”This is also significant because the dismissal in ORTIZ came from a motion for involuntary dismissal by the defendant rather than a judgment for the borrower in the instant case. The Florida Defense Bar has attempted to argue away ORTIZ by saying the burden of proof for an involuntary dismissal (whether the plaintiff has shown a prima facie case) differentiated from a case where the defendant simply needed to show a preponderance of the evidence to prevail. This opinion extinguishes that argument and allows for the same rebuttable presumption to exist in either case.

The court then went further in its analysis and advised that it was not necessary to look to the Power of Attorney to determine the issue of standing, as U.S. Bank’s standing turns on whether it was entitled to enforce the note at the time of filing of the case (the footnote even goes as far as saying any difference in the wording of the trust named in the POA and the plaintiff appears to be immaterial). This is especially important as the borrower’s Answer Brief specifically challenged the authority of the witness to testify at trial because of the discrepancy in the POA. The Court, in footnote 1, wrote that U.S. Bank’s witness’ ability to testify came not from the POA, but from the evidence code and that any witness may testify as to matters within their personal knowledge.

The Court reversed the ruling of judgment for the borrower and remanded to the trial court to enter judgment in favor of the Plaintiff (as the plaintiff had previously already proven damages and condition precedent).