In the District Court of Appeal s1

IN THE DISTRICT COURT OF APPEAL OF THE SECOND DISTRICT, STATE OF FLORIDA

MICHAEL T. WYATT, DEBRA A. WYATT & MICHAEL HANSEN, Defendants/Appellants v. DCA CASE NO. 2D16-433

CIT BANK, Appellee ______/

APPELLANTS’ INITIAL BRIEF

Randall O. Reder, P.A. Florida Bar No. 264210 1319 W. Fletcher Ave. Tampa, FL 33612-3310 phone(813) 960-1952 fax (8130 265-0940 email [email protected] sec. email [email protected] TABLE OF CONTENTS

Table of Citations...... 3

Statement of Facts and Case...... 1

Summary of Argument ...... 6

Issues Presented

I. Whether the Lower Tribunal erred in granting final judgment foreclosing a reverse mortgage where the original complaint was filed by Financial Freedom which lacked standing because its assets had previously been acquired by the FDIC and because there was no evidence it had been authorized by anyone to file a foreclosure action ...... 7

II. Whether the Lower Tribunal erred in granting final judgment foreclosing a reverse mortgage where OneWest failed to produce any evidence that it had standing to file the third amended complaint...... 17

Conclusion ...... 22

Certificate of Service ...... 23 TABLE OF CITATIONS Cases Alfonso v. JP Morgan Chase Bank, N.A., 182 So.3d 930, 931-932 (Fla. 4th DCA 2016)...... 15

Beauchamp v. Bank of New N.Y., 150 So.3d 827 (Fla. 4th DCA 2014)...... 14

Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla. 4th DCA 2014). .9, 16

Cardona v. Nationstar Mortg., LLC, 174 So.3d 491 (Fla. 4th DCA 2015);...... 14

Chery v. Bank of America, 183 So.3d 1253 (Fla. 4th DCA 2016)...... 11

Correa v. U.S. Bank Nat’l. Ass’n., 118 So.3d 952 (Fla. 2d DCA 2013)...... 21

Corrigan v. Bank of America, 189 So.3d 187, 189-190 (Fla 2d DCA 2016)...... 11

Ensler v. Aurora Loan Servs., LLC, 178 So. 3d 95, 97 (Fla. 4th DCA 2015).....9, 16

Fiorito v. JP Morgan Chase Bank, 174 So.3d 519 (Fla. 4th DCA 2015)...... 13

Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994).. 20

GMAC Mortg., LLC v. Choengkroy, 98 So. 3d 781 (Fla. 4th DCA 2012)...... 16

Ha v. BAC Home Loans Servicing, L.P., 184 So.3d 563 (Fla. 4th DCA 2016);.....11

Kenny v. HSBC Bank, USA, N.A., 175 So.3d 377 (Fla. 4th DCA 2015)...... 13

Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014)...... 10

Murray v. HSBC Bank, 157 So.3d 355, 358 (Fla. 4th DCA 2015)...... 18

Ortiz v. PNC Bank, 188 So.3d 923 (Fla. 4th DCA 2016)...... 9, 16

Reynolds v. Nationstar Loan Services, LLC, 190 So.3d 219 (Fla. 4th DCA 2016),.15

Rincon v. HSBC Bank USA, N.A., 41 Fla. L. Weekly D949 (Fla. 5th DCA April 15, 2016)...... 9, 16 Russel v. Aurora Loan Services, LLC, 163 So.3d 639 (Fla. 2d DCA 2015)...... 13 3 SAS v. Federal National Mortgage Ass’n., 112 So.3d 778 (Fla. 2d DCA 2006)....14

Septimus v. Christiana Trust, 183 So.2d 471 (Fla. 4th DCA 2016)(...... 14

St. Clair v. U.S. Bank Nat’l. Assn., 173 So.3d 1045 (Fla. 2d DCA 2015)...... 9, 16

Wolkoff v. American Home Mortgage Servicing, Inc., 153 So.3de 280 (Fla. 2d DCA 2014)...... 21

US Code

24 CFR § 206.125…………………………………………………………………7

FLORIDA §S:

Section 673.1041(1), Florida Statutes (2016) …………………………………… 18

4 STATEMENT OF FACTS AND CASE

Ruth E. Diehl, Financial Freedom Senior Funding Corporation (a Subsidiary of IndyMac Bank, FSB)(“Freedom”) and the Secretary of Housing and Urban

Development)(“HUD”) entered into a Home Equity Conversion Loan Agreement on November 15, 2005)(pp. 655-660). In Article 1, paragraph 1.3 defined “Loan

Documents” as “the Note, Second Note, Security Instrument and Second Security

Instrument.” (p. 655). On February 6, 2006, Ms. Diehl executed a Last Will and

Testament naming Michael and Deborah Wyatt as her personal representative and heirs to all of her property (pp. 259-262). Ms. Diehl died on July 27, 2007 (p.

596). Michael and Deborah Wyatt were appointed personal representatives of her estate (P. 696).

Freedom Financial filed a foreclosure complaint to reestablish a lost promissory note and foreclose on a mortgage (pp. 15-36) and recorded a lis pendens on August 18, 2008 (P. 654). Unaware of the lis pendens because they had not received it and because it had been improperly indexed by the clerk (p.

706), the Wyatts, as personal representatives for the estate of Ruth Diehl, conveyed title to Michael Hansen by virtue of a quitclaim deed in December 2008 (pp. 201,

693-694).

Michael Hansen filed a motion to dismiss, claiming Freedom Financial had failed to attach to the complaint a copy of the Note (pp. 74-75). Judge Foster 5 entered an order of dismissal without prejudice (p. 112). Freedom Financial filed an amended complaint, attaching copies of an Adjustable Rate Note, an Adjustable

Rate Home Equity Conversion Mortgage, and an Adjustable Rate Home Equity

Conversion Second Mortgage (pp. 113-137). Mr. Hansen filed a Motion to Strike

Plaintiff’s Amended Complaint (p. 138). Freedom Financial filed a Motion for

Relief from the Order Dismissing the Case Without prejudice, pointing out that

Mr. Hansen was not named as a defendant and that he had submitted the proposed order of dismissal ex parte without Plaintiff’s counsel’s knowledge (pp. 176-184).

Judge Foster entered an order granting Plaintiff’s motion, vacating his prior dismissal, and striking all motions, pleadings and discovery requests filed by Mr.

Hansen (pp. 272-272),

On March 12, 2012, the trial court entered an order substituting OneWest

Bank, FSB as a party of Freedom Financial (p. 286). OneWest Bank filed an

Amended Complaint for Foreclosure, attaching copies of the Adjustable Rate Note and Home Equity Conversion Mortgage (pp. 391-409). The Wyatts filed a pro se answer raising three affirmative defenses (pp. 451-458). Subsequently, Sean V.

Donnelly filed a notice of appearance as counsel for the Wyatts (p. 474).

The case proceeded to a final hearing on December 21, 2015, before the

Honorable Sandra Taylor. At trial, Mr. Donnelly stated the Wyatts were not pursuing their affirmative defenses, but were defending on the grounds that 6 OneWest was not going to be able to prove its case as it lacked standing and that its predecessor Financial Freedom did not afford the Wyatts the opportunity to purchase the property per 24 CFR § 206.125 (pp. 698-699).

Dion Kala, a foreclosure manager for CIT Bank, testified he had worked for

Freedom Financial since January 2006 (p. 700). He explained that FDIC took over

IndyMac Bank and its subsidiaries including Financial Freedom (p. 702). When

FDIC transferred the portfolio of reverse mortgages to OneWest Bank, “OneWest

Bank put the reverse mortgages assets in a subsidiary called Financial Freedom

Acquisition.” (p. 702). Mr. Kala testified CIT Bank and OneWest merged in

August of 2015 (pp. 700-701). He said that the servicing system and documents

“never changed hands, never moved.” (pp. 701-702),

He identified and submitted into evidence as business records five exhibits:

 Exhibit 1 – the original adjustable rate note (pp. 705-706).  Exhibit 2 - a composite of an adjustable rate home equity conversion mortgage and adjustable rate home equity conversion second mortgage. (pp. 578-595 and 707-709)  Exhibit 3 – Ms. Diehl’s death certificate (pp. 596, 709)  Exhibit 4 - Bailee letter from Freedom to first attorney Kahane & Associates (pp. 597 and 710-711)  Exhibit 5 – a loan transaction history (pp. 598-649 and 712-713)

Based on the proposed final judgment, Mr. Kala testified that the total amount owed, including attorney’s fees, was $191,940.31 (p. 714).

7 The trial judge found the plaintiff presented sufficient evidence to prevail on the complaint for foreclosure and granted Appellants’ request for an extended 60- day sale date. (pp. 731-32).

Appellants Michael and Deborah Wyatt timely filed a pro se notice of appeal

(p. 674).

SUMMARY OF ARGUMENT

In a mortgage foreclosure action where there has been an assignment of the right to sue, the plaintiff is required to prove that the original plaintiff had the right to commence a foreclosure suit and to prove that it has the right to foreclose upon the mortgage at the trial. In this case, Plaintiff did neither.

Freedom Financial clearly did not have any right to foreclose because all of its assets were acquired by the FDIC before it filed the original complaint.

Although an original promissory note was placed into evidence, this was insufficient to establish standing. There was no evidence Freedom Financial was in possession before the filing of the lawsuit. There was no evidence as to when the blank endorsement was placed on the note.

The plaintiff at the trial was OneWest Bank, FSB. Again OneWest failed to present any evidence as to when it acquired possession of the promissory note or when the endorsement in blank was placed on the note. It also failed to present any evidence of authorization from anyone to enforce the note and foreclose on the mortgage. It’s axiomatic that the mortgage follows the note. In this case, the

Plaintiff’s witness stated he “believed” the original note was sent to HUD. There is nothing in the record to show that HUD ever authorized this foreclosure proceeding. 9 I. Whether the Lower Tribunal erred in granting final judgment foreclosing a reverse mortgage where the original complaint was filed by Financial Freedom which lacked standing because its assets had previously been acquired by the FDIC and there was no evidence it had been authorized by anyone to file a foreclosure action.

Scope of Review Normally scope of review is competent, substantial evidence because the trial court is in a better position to evaluate the weight and credibility of the witness’s testimony. However, in these mortgage foreclosure cases the scope of review is de novo because the evidence is totally based on documents, which this

Court has the equal ability to evaluate. E.g., Rincon v. HSBC Bank USA, N.A., 41

Fla. L. Weekly D949 (Fla. 5th DCA April 15, 2016); Ortiz v. PNC Bank, 188

So.3d 923 (Fla. 4th DCA 2016); Ensler v. Aurora Loan Servs., LLC, 178 So. 3d

95, 97 (Fla. 4th DCA 2015); St. Clair v. U.S. Bank Nat’l. Assn., 173 So.3d 1045

(Fla. 2d DCA 2015); Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla.

4th DCA 2014); GMAC Mortg., LLC v. Choengkroy, 98 So. 3d 781 (Fla. 4th DCA

Argument on the Merits

In the recent case of Seffar v. Residential Credit Solutions, Inc., 160 So.3d

122,124 (Fla. 4th DCA 2015), the District Court of Appeal Fourth District set

10 forth the requirement of proving the original plaintiff had standing at the commencement of the lawsuit.

Standing of the plaintiff to foreclose on a mortgage must be established at the time the plaintiff files suit. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). McLean set forth the requirements that a plaintiff may prove standing in a mortgage foreclosure: Standing may be established by either an assignment or an equitable transfer of the mortgage prior to the filing of the complaint ... For example, standing may be established from a plaintiff’s status as the note holder, regardless of any recorded assignments.... If the note does not name the plaintiff as the payee, the note must bear a special endorsement in favor of the plaintiff or a blank endorsement.... Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff ... Even in the absence of a valid written assignment, the mere delivery of a note and mortgage, with intention to pass the title, upon a proper consideration, will vest the equitable interest in the person to whom it is so delivered. Id. at 173 (citations and quotation marks omitted).

See also, Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st

DCA 2014)("A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that

[it] had standing as of the time the foreclosure complaint was filed.").

11 Since the original complaint sought to reestablish a lost promissory note,

Freedom Financial could not rely on the presumption afforded when an entity possesses an original promissory note endorsed in blank.

“To be a holder entitled to enforce under the facts of this case, Bank of America was required to show physical possession of the original note and an endorsement or allonge either in blank or in favor of the plaintiff.” Eagles Master Ass’n v. Bank of Am., N.A., ––– So.3d ––––, ––––, 40 Fla. L. Weekly D1510, D1510, 2015 WL 3915871 (Fla. 2d DCA June 26, 2015). “The endorsement must have occurred before the filing of the complaint because it is axiomatic that standing must be shown as of the filing of the complaint.” Id. (citing Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013)). “Had the note with the blank endorsement been filed with the original complaint, that would have been sufficient to show standing.” Id. (citing Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So.3d 1222 (Fla. 2d DCA 2014)). But “a later filed copy of the note with the endorsement [does] not suffice to show standing at the time the complaint was filed.” Id. (citing May v. PHH Mortg. Corp., 150 So.3d 247 (Fla. 2d DCA 2014).

Corrigan v. Bank of America, 189 So.3d 187, 189-190 (Fla 2d DCA 2016); see also, Ortiz v. PNC Bank, 188 So.3d 923 (Fla. 4th DCA 2016); Ha v. BAC Home

Loans Servicing, L.P., 184 So.3d 563 (Fla. 4th DCA 2016); Chery v. Bank of

America, 183 So.3d 1253 (Fla. 4th DCA 2016). Therefore OneWest was required to present other evidence showing Financial Freedom had the authority to foreclose on the mortgage. Such other evidence can be in the nature that Freedom Financial owned the note itself or had the authority to act on someone else’s behalf. E.g.,

12 Seffar v. Residential Credit Solutions, Inc., 160 So.3d 122; McLean v. JP Morgan

Chase Bank Nat’l Ass’n, 79 So.3d 170.

Nowhere during the trial did OneWest present any evidence that Freedom

Financial was the owner of the note. Indeed, the uncontroverted evidence submitted by the defense showed that on “July 11, 2008, IndyMac “Bank F.S. B.,

Passadena CA was closed by the Office of the Thrift Supervisor) and the FDIC was named conservator” and that “substantially all of the assets of IndyMac Bank,

F.S.B have been transferred to IndyMac Federal Bank, F.S.B. (IndyMac Federal

Bank), Passadena, CA ‘assuming institution’) a newly chartered full-service FDIC- insured institution.” (p. 651). Hence, Financial Freedom could not have possibly been the owner nor the holder of the promissory note when this suit was filed on

August 13, 2008.

Moreover, Mr. Kala testified that Plaintiff is the “servicer.” (p. 702). On cross-examination, he admitted that the assignments referenced in the Bailee letter were ones concerning assignments of servicing rights, not assignments of the mortgage.

Q Could you refer to Exhibit C, the Bailee letter? A Yes. Q And could you read once again the documents that were checked in there? Or the boxes that were checked. I’m sorry. A It’s the original adjustable rate note, an original unrecorded assignment, and an original certification of note possession.

13 Q Okay. You had stated earlier that Financial Freedom was the holder and owner of this note throughout the merger, that it’s never changed. Why would there be an assignment that was unrecorded? A There would be an assignment of the mortgage to show who was servicing the mortgage. Q So it was simply an assignment of servicing rights, not an assignment of mortgage? A Yes (p. 715).

This testimony is insufficient as a matter of law to establish standing based on the allegation the plaintiff is the holder. See Fiorito v. JP Morgan Chase Bank,

174 So.3d 519 (Fla. 4th DCA 2015)(trial court erred by entering a final judgment of mortgage foreclosure because plaintiff’s witness did not testify plaintiff “was the owner and holder of the note prior to the filing of the complaint.”); Kenny v.

HSBC Bank, USA, N.A., 175 So.3d 377 (Fla. 4th DCA 2015)(trial court erred in granting final judgment of foreclosure because plaintiff’s witness did not testify plaintiff was the holder); Seffar v. Residential Credit Solutions, Inc., 160 So.3d

122 (Fla. 4th DCA 2015)(judgment of mortgage foreclosure reversed where plaintiff alleged it was the holder, but its witness consistently testified it brought the suit as the servicer).

Because of Mr. Kala’s testimony that Financial Freedom was the servicer, it was incumbent upon Financial Freedom to present evidence of authorization to pursue a foreclosure action. In Russel v. Aurora Loan Services, LLC, 163 So.3d

639, 643 (Fla. 2d DCA 2015), this Court reversed a final judgment of foreclosure 14 after a nonjury trial because the plaintiff servicing company failed to present any evidence that it was authorized to bring the suit stating:

In this case, as in Elston/Leetsdale, Aurora alleged and verified as true that it was the loan servicer and had authority to bring the foreclosure action. Aurora did not allege upon what authorization it acted. Nor did Aurora attach to the complaint or file of record “any evidence, affidavits[,] or other documents, supporting its allegation that it was authorized to prosecute the action on behalf of the trust.” See Elston/Leetsdale, 87 So. 3d at 17.

One West attempted to get around this by Mr. Kala testifying as to the various transfers, mergers, name changes, etc. (pp. 702-703). However this testimony was not based on personal knowledge and did not qualify as a business records exception to the hearsay rule as it was not based on any exhibits introduced into evidence. E.g., Cardona v. Nationstar Mortg., LLC, 174 So.3d 491 (Fla. 4th

DCA 2015); Beauchamp v. Bank of New N.Y., 150 So.3d 827 (Fla. 4th DCA 2014);

SAS v. Federal National Mortgage Ass’n., 112 So.3d 778 (Fla. 2d DCA 2006); see also Septimus v. Christiana Trust, 183 So.2d 471 (Fla. 4th DCA 2016)(bank failed to submit evidence of “FDIC’s assignment of the note and mortgage to its predecessor before the complaint was filed”).

But even if this Court recognizes there was a series of transfers of the servicing of the mortgage, Ocwen failed to present any evidence of authorization to

Financial Freedom to file the lawsuit. A successor plaintiff is required to prove that the original plaintiff had the authorization to file the initial complaint. 15 Here, the successor plaintiff, which was the real party in interest, failed to present any evidence demonstrating that it granted the original plaintiff/servicer the authority to enforce the note at the time the original plaintiff/servicer filed the foreclosure action. Thus, the successor plaintiff did not prove that the original plaintiff/servicer had standing to commence the foreclosure action. See id. at 63–65 (reversing final judgment of foreclosure for servicer where servicer filed foreclosure action in its own name but introduced no evidence showing that the real party in interest authorized it to bring the action); Assil v. Aurora Loan Servs., LLC, 171 So.3d 226, 229 (Fla. 4th DCA 2015) (reversing final judgment of foreclosure for servicer where the servicer “failed to provide sufficient proof that it was authorized at any time to prosecute the foreclosure action on behalf of [the note owner] ... or was otherwise ... entitled to enforce the Note at the time it filed the action”).

Alfonso v. JP Morgan Chase Bank, N.A., 182 So.3d 930, 931-932 (Fla. 4th DCA

2016).

In Reynolds v. Nationstar Loan Services, LLC, 190 So.3d 219 (Fla. 4th DCA

2016), the District Court of Appeal, Fourth District likewise reversed a final judgment of mortgage foreclosure because Nationstar failed to prove Aurora had standing at the time the complaint was filed. Since the original note with a blank endorsement was not submitted until after the suit was filed, there was no presumption of standing. The Court stated it was Nationstar’s burden to show the endorsements were made before the filing of the original complaint. The Court also noted the trial court could not take judicial notice that “Aurora is the servicing arm of Lehman brothers.” Id. at 221. Likewise in this case, Judge Taylor could

16 not take judicial notice that either Freedom Financial was authorized by HUD to bring or maintain this foreclosure suit.

17 II. Whether the Lower Tribunal erred in granting final judgment foreclosing a reverse mortgage where OneWest failed to produce any evidence that it had standing to file the third amended complaint.

Scope of Review Normally scope of review is competent, substantial evidence because the trial court is in a better position to evaluate the weight and credibility of the witness’s testimony. However, in these mortgage foreclosure cases the scope of review is de novo because the evidence is totally based on documents, which this

Court has the equal ability to evaluate. E.g., Rincon v. HSBC Bank USA, N.A., 41

Fla. L. Weekly D949 (Fla. 5th DCA April 15, 2016); Ortiz v. PNC Bank, 188

So.3d 923 (Fla. 4th DCA 2016); Ensler v. Aurora Loan Servs., LLC, 178 So. 3d

95, 97 (Fla. 4th DCA 2015); St. Clair v. U.S. Bank Nat’l. Assn., 173 So.3d 1045

(Fla. 2d DCA 2015); Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129 (Fla.

4th DCA 2014); GMAC Mortg., LLC v. Choengkroy, 98 So. 3d 781 (Fla. 4th DCA

2012).

Argument on the Merits

The Amended Complaint for Foreclosure (pp. 391-396) was filed by

OneWest Bank, on September 15, 2014. The attachments were an Adjustable Rate

Note (Home Equity Conversion) and an Adjustable Rate Home Equity Conversion

18 Mortgage. (pp. 401-409). In common parlance, they are known as a HELOC note and mortgage.

Paragraph 2 alleges that OneWest Bank, FSB n/k/a OneWest Bank, NA “ a national association, is the holder of the note.” Other than this sentence, there is nothing else in the complaint that states a basis for OneWest’s standing to bring this foreclosure action.

Because Heloc notes and mortgages are an establishment of a line of credit, there is no specific amount loaned. Mr. Kala acknowledged that Plaintiff’s

Exhibit A, which was admitted into evidence as Exhibit 1, was a note that did not state an amount (p. 720). This failure to state an amount results in the note not being a negotiable instrument. Section 673.1041(1), Florida Statutes (2016) which states:

Negotiable instrument.— (1) Except as provided in subsections (3), (4), and (11), the term “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: (a) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder; (b) Is payable on demand or at a definite time; and (c) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain: 1. An undertaking or power to give, maintain, or protect collateral to secure payment; 2. An authorization or power to the holder to confess judgment or realize on or dispose of collateral; or 19 3. A waiver of the benefit of any law intended for the advantage or protection of an obligor.

The loan in this case opens a line of credit and is not a promise to pay a

“fixed amount.” Further proof that it is not a negotiable instrument is Paragraph

4(C), which states: “Borrower shall have no personal liability for payment of the debt.” Finally, the note states as an additional “undertaking” that the borrower must “physically occupy the property.” (p. 403).

Even if this Court rejects the argument that the promissory note is not a negotiable instrument, OneWest failed to establish that it was the holder or a nonholder in possession with the rights of a holder. In short, possession of a promissory note endorsed in blank is insufficient to establish the right to enforce.

A nonholder in possession, however, cannot rely on possession of the instrument alone as a basis to enforce it.... The transferee does not enjoy the statutorily provided assumption of the right to enforce the instrument that accompanies a negotiated instrument, and so the transferee “must account for possession of the unendorsed instrument by proving the transaction through which the transferee acquired it.” Com. Law § 3–203 cmt. 2. If there are multiple prior transfers, the transferee must prove each prior transfer. Once the transferee establishes a successful transfer from a holder, he or she acquires the enforcement rights of that holder. See Com. Law § 3–203 cmt. 2. A transferee’s rights, however, can be no greater than his or her transferor’s because those rights are “purely derivative.” Murray v. HSBC Bank, 157 So.3d 355, 358 (Fla. 4th DCA 2015).

20 This case is on all fours with Seffar v. Residential Credit Solutions, Inc., 160

So.3d 122 (Fla. 4th DCA 2015), in which the plaintiff’s litigation manager failed to offer evidence of one of the prior transfers of the note.

Finally, as to the transfer between RCS and Bayview, the litigation manager testified that while he believed that Bayview purchased the note and mortgage from RCS, he had never seen a purchase agreement, and no document memorializing the purchase was entered into evidence. Therefore, because there is a gap in the transfer of the note and mortgage, Bayview did not prove that RCS, and subsequently Bayview, were nonholders in possession.

Id. at 126-127. As in Seffar, the litigation manager in this case also simply testified he “believe[d]” IndyMac was closed by the Office of the Thrift Supervisor in July 2009 (p. 716). When shown Defendant’s Exhibit 1, Mr. Kala acknowledged that it was July 11th, 2008 (p. 30).

When asked what Freedom Financial’s status was, Mr. Kala testified he

“believe[d]” it was a subsidiary of FDIC.

Q And with regards to Financial Freedom today, is Financial Freedom still a present existing and working corporation today? A Which Financial Freedom? There’s – Q SFC, I believe. A Financial Freedom Senior Funding Corporation became a subsidiary of FDIC when FDIC tool over IndyMac Bank. Q So it’s still a subsidiary and still existing under FDIC? A I believe so. (p. 725).

In short, Plaintiff’s entire case rests upon unsubstantiated, speculative, inadmissible hearsay evidence.

21 Finally, even if this Court finds there has been valid transfers of assignments of note or mortgage, such is not sufficient to show a transfer of the right to continue this foreclosure suit. Assigning a note or mortgage is not the same as assigning a chose in action. There must be evidence of an assignment of a chose in action.

The Assignment of Mortgage is, as it states, an assignment of all of the RTC's rights and interests in the mortgage and related collateral. The Assignment of Mortgage makes no mention of, or attempt to, assign to Lennar any cause of action held by the RTC. In order for Lennar to pursue an action based on a cause of action held by the RTC Lennar must allege a valid assignment of that cause of action from the RTC. Lennar has failed to allege, and the exhibits attached to the amended complaint do not demonstrate, that the assignment from the RTC, gave Lennar any right to prosecute any cause of action previously held by the RTC. Since Lennar did not, and cannot, allege a valid assignment the amended complaint fails to allege a cause of action upon which relief may be granted.

Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994).

22 CONCLUSION

Because Plaintiff failed to meet its burden of proving Financial Freedom had the right to foreclose on the mortgage at the commence of this case or that or that Ocwen had the right to foreclose at the trial, this Court should reverse and remand with instructions to the lower tribunal to enter a judgment of involuntary dismissal. E.g., Reynolds v. Nationstar Loan Services, LLC, 190 So.3d 219 (Fla.

4th DCA 2016); Wolkoff v. American Home Mortgage Servicing, Inc., 153 So.3d

280 (Fla. 2d DCA 2014); Correa v. U.S. Bank Nat’l. Ass’n., 118 So.3d 952 (Fla. 2d

DCA 2013).

Respectfully submitted,

/s/Randall O. Reder ______Randall O. Reder, P.A. Florida Bar No. 264210 1319 W. Fletcher Ave. Tampa, FL 33612-3310 Phone(813) 960-1952 Fax (813) 265-0940 Email [email protected] Sec. Email [email protected]

23 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by electronic mail via the E-Portal where electronic address is provided or by U.S. mail on July 5, 2016, to Robertson, Anschutz & Schneid, P.L. at 6409 Congress Ave., Suite 100, Boca Raton, FL 33487 ([email protected]).

I hereby certify that this brief has been prepared using New Times Roman

14-point font in compliance with Florida Rule of Appellate Procedure 9.100(l).

/s/Randall O. Reder Randall O. Reder, Bar No. 264210 1319 West Fletcher Avenue Tampa, FL 33612 Phone 813-960-1952 Fax 813-265-0940 [email protected] [email protected]