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agreeing with the First District that "[s]ection 673.3091 does not create a standalone cause of action apart from a breach" (quoting Mielke v. Deutsche Bank Nat'l Tr. Co. , 264 So. 3d 249, 253 (Fla. 1st DCA 2019) )
Summary of this case from Wilmington Sav. Fund Soc'y v. Charm-B, Inc.Opinion
Case No. 2D18-3730
10-28-2020
FORTY ONE YELLOW, LLC, Appellant/Cross-Appellee, v. Yoel Remon ESCALONA and Nuria Gonzalez, Appellees/Cross-Appellants.
Yelena Shneyderman of Yelena Shneyderman, P.A., Hollywood, for Appellant/Cross-Appellee. David W. Fineman and Joseph C. Lotempio of The Dellutri Law Group, P.A., Ft. Myers, for Appellees/Cross-Appellants.
Yelena Shneyderman of Yelena Shneyderman, P.A., Hollywood, for Appellant/Cross-Appellee.
David W. Fineman and Joseph C. Lotempio of The Dellutri Law Group, P.A., Ft. Myers, for Appellees/Cross-Appellants.
LaROSE, Judge.
Forty One Yellow, LLC (FOY), appeals the final judgment dismissing its action to reestablish a lost note and foreclose upon the home of Yoel Remon Escalona and Nuria Gonzalez (the Borrowers). The Borrowers cross-appeal. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.110(b), (g). We affirm because FOY failed to prove its standing to foreclose. Although the trial court properly denied FOY's motion for rehearing/motion to reopen the evidence, we write, primarily, to explain why the trial court erred in finding that res judicata barred FOY's foreclosure action. See Fla. R. Civ. P. 1.530(a).
We affirm without further comment the parties’ remaining issues.
Background
In 2006, the Borrowers executed a promissory note to Fremont Investment & Loan to purchase a home. The Borrowers also delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as Fremont's nominee, an executed mortgage securing payment of the note. The mortgage conferred upon MERS "the right to foreclose and sell the [p]roperty."
Shortly thereafter, in December 2007, LaSalle Bank, N.A., filed a foreclosure complaint against the Borrowers. The trial court entered a 2009 final judgment against the Borrowers. Several months later, the trial court vacated the final judgment and directed the clerk to return the original note and mortgage to LaSalle's attorney. Apparently, the note never made its way back to LaSalle's attorney. If it did, it was misplaced.
A "Corporate assignment of mortgage/deed of trust" indicates that on December 18, 2007, MERS, as nominee for Fremont, purportedly transferred both the note and mortgage to LaSalle. See Taylor v. Deutsche Bank Nat'l Tr. Co., 44 So. 3d 618, 622-23 (Fla. 5th DCA 2010) (holding that written assignment of promissory note and mortgage from nominee of original lender to bank was sufficient to confer upon bank authority to foreclose mortgage, even though nominee had no beneficial interest in note and note was not endorsed by original lender; mortgage gave nominee explicit power to enforce note by foreclosing note and nominee assigned that right to bank).
The December 18, 2007, assignment appears to have been executed after LaSalle filed its December 2007 foreclosure complaint. However, we cannot glean from our record whether this was the basis for the trial court's vacatur of the final judgment.
Over the ensuing years, the note and mortgage wended their way through the secondary mortgage market. In 2013, FOY, claiming entitlement to enforce the note, filed its first foreclosure complaint; it sought to reestablish the lost note. FOY alleged that the Borrowers failed to make any loan payments since August 2007. Eventually, the trial court entered a 2014 final judgment in favor of the Borrowers. The trial court "f[ound] that [FOY] failed to re-establish [sic] the lost promissory note under [section] 673.3091, Fla. Stat. [ (2013),] thus precluding entry of a judgment of foreclosure." The judgment dismissed FOY's complaint.
Undeterred, FOY filed a second foreclosure action in 2017. Again, FOY sought to reestablish the lost note. FOY alleged that the Borrowers had not made a loan payment since September 2012. The Borrowers’ defenses included res judicata, collateral estoppel, and lack of standing. The trial court conducted a nonjury trial in the summer of 2018. The evidence demonstrated that the debt had been commoditized and transferred several times. We need not recount the details of each transaction, save one.
In January 2012, MERS executed an assignment of mortgage to Stonecrest Income Opportunity Fund I, LLC. MERS transferred "[a]ll its right, title[,] and interest in and to a certain Mortgage from [Borrowers] to [MERS] as nominee for [Fremont]." However, "[t]he assignment made nary a mention of the note." See Scott v. Strategic Realty Fund, 45 Fla. L. Weekly D1137, ––– So.3d ––––, 2020 WL 2464807 (Fla. 2d DCA May 13, 2020). In August 2012, FOY purportedly purchased the mortgage from Stonecrest.
How could MERS make this assignment when, in December 2007, acting as Fremont's nominee, MERS transferred the note and mortgage to LaSalle? A good and fair question; one to which neither the parties nor our record supply a ready answer.
At the conclusion of the 2018 bench trial on FOY's second foreclosure lawsuit, the trial court, again, entered final judgment for the Borrowers. The written final judgment provided as follows:
[FOY] established all facts and conditions, including reestablishment of the lost note, necessary to support a judgment of foreclosure in the amounts claimed and would be entitled to judgment except as follows. [FOY] has failed to establish it has standing to enforce the note because an assignment necessary to its standing fails to transfer the note. [FOY]'s establishment of the lost note in this case may not be relied on because that issue is barred by res judicata/collateral estoppel. That issue was previously litigated in a prior case between the same parties and the court made a specific finding that [FOY] failed to establish the lost note. The fact this is a different cause of action will not permit the relitigation of that finding.
(Emphasis added.) Thus, the final judgment involuntarily dismissed FOY's second attempt to foreclose. And, it did so apparently with prejudice, thus preventing FOY from pursuing any recourse.
FOY filed a "Motion for rehearing and/or to re-open case to permit plaintiff to present additional evidence and testimony." See Fla. R. Civ. P. 1.530. Despite a break in the chain of assignments, FOY argued that it had presented sufficient evidence to prove standing. Alternatively, FOY asked the trial court to reopen the case to allow "additional testimony to affirmatively establish the complete chain of transfers of the note" and "to present additional newly-discovered evidence." The trial court denied the motion.
Analysis
I. FOY's standing, or lack thereof
Standing is a necessary predicate to secure a foreclosure judgment. Scott, 45 Fla. L. Weekly at D1137, ––– So.3d at ––––, 2020 WL 2464807 ("The plaintiff must have standing to foreclose a mortgage. To have standing, the plaintiff must be legally entitled to enforce the note to which the mortgage relates."). We review de novo the trial court's ruling on standing. See Peters v. Bank of N.Y. Mellon, 227 So. 3d 175, 178 (Fla. 2d DCA 2017) ("Our review of a trial court's ruling regarding whether a foreclosure plaintiff has standing is de novo.").
The foreclosure plaintiff must either be a holder of the note or a nonholder in possession of the note with the rights of a holder. Creadon v. U.S. Bank N.A., 166 So. 3d 952, 954 (Fla. 2d DCA 2015) ("An entity can establish standing to foreclose a note secured by a mortgage by showing that it is the holder of the note or a nonholder in possession of the note who has the rights of a holder." (citing Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011) )). Without diving into the weeds concerning these alternatives, suffice it to say that the note is the instrument from which standing springs.
"Standing to foreclose by one other than the original lender can be established through evidence of an assignment or equitable transfer of the note ... completed before the complaint is filed." Sorrell v. U.S. Bank Nat'l Ass'n, 198 So. 3d 845, 847 (Fla. 2d DCA 2016). Here, FOY had to establish its right to sue through a valid chain of assignments of the note. See, e.g., Geweye v. Ventures Tr. 2013-I-H-R, 189 So. 3d 231, 232-33 (Fla. 2d DCA 2016) (holding that despite original plaintiff's standing at suit's inception, Ventures Trust 2013-I-H-R lacked standing as a substituted plaintiff to foreclose where, despite introducing an assignment of mortgage at trial, "[t]he assignment ... did not purport to assign any interest in the note"). "An assignment of the mortgage without an assignment of the debt creates no right in the assignee." Vance v. Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965).
The January 2012 assignment from MERS to Stonecrest failed to mention the note. See, e.g., Morroni v. Wilmington Sav. Fund Soc'y FSB, 292 So. 3d 514, 519 (Fla. 2d DCA 2020) (stating that chain of "assignments transferred only the mortgage, not the note. It is by now well established that an assignment that transfers only the mortgage and not the note is insufficient to show standing." (citing Verizzo v. Bank of N.Y. Mellon, 220 So. 3d 1262, 1266 (Fla. 2d DCA 2017) )); Partridge v. Nationstar Mortg., LLC, 224 So. 3d 839, 841-42 (Fla. 2d DCA 2017) (holding that an assignment of mortgage made to loan servicer failed to establish servicer's standing to foreclose where there was no evidence that servicer acquired an interest in the note); Verizzo, 220 So. 3d at 1266 ("[T]he assignments do not purport to transfer the note, and our court has held that an assignment of mortgage that does not also transfer the note, at least standing alone, does not prove that a foreclosure plaintiff has the rights to enforce the note."); Eaddy v. Bank of Am., N.A., 197 So. 3d 1278, 1280 (Fla. 2d DCA 2016) (holding that plaintiff failed to prove standing where "the assignment of mortgage attached to [the] amended complaint reflects only the transfer of the mortgage and not the note"); Caballero v. U.S. Bank Nat'l Ass'n, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016) ("[T]he assignment was insufficient to show standing because it only purported to assign the mortgage, not the note."); Bristol v. Wells Fargo Bank, Nat'l Ass'n, 137 So. 3d 1130, 1133 (Fla. 4th DCA 2014) ("The bank relies on the ‘Assignment of Mortgage’ from MERS to support standing, but the ‘assignment of mortgage reflects transfer of only the mortgage, not the note.’ The bank argues that the note followed the mortgage when the mortgage was assigned to the bank. This argument is flawed. The mortgage follows assignment of the note." (first quoting Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277 (Fla. 4th DCA 2013) ; then citing Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1118 (Fla. 2d DCA 2011) )); Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) ("Nationstar did not prove its standing to enforce the note through evidence of an assignment because the assignment at bar assigns only the mortgage.").
Stonecrest's August 2012 assignment to FOY could not transfer the note; Stonecrest could not transfer an interest it did not hold. Thus, "one of the pieces is missing" from this "foreclosure puzzle." See Murray v. HSBC Bank USA, 157 So. 3d 355, 356 (Fla. 4th DCA 2015). Because of this break in the assignment of the note, we are compelled to affirm the trial court's entry of final judgment for the Borrowers for lack of standing.
II. Res judicata did not bar FOY's lawsuit
In its 2018 final judgment, the trial court found that despite its failure to prove standing, FOY "established all facts and conditions, including reestablishment of the lost note, necessary to support a judgment of foreclosure." However, the trial court reasoned that "establishment of the lost note in this case may not be relied on because that issue is barred by the doctrine of res judicata/collateral estoppel." The trial court observed that because the "issue was previously litigated in a prior case between the same parties and the court made a specific finding that [FOY] failed to establish the lost note," it would "not permit a relitigation of that finding."
We review this ruling de novo. Campbell v. State, 906 So. 2d 293, 295 (Fla. 2d DCA 2004) ("The de novo standard of review applies to a trial court's ruling that a defendant is barred from obtaining relief on the grounds of res judicata or collateral estoppel."). The trial court's rationale is incorrect.
As an initial matter, we observe that the trial court conflated the two doctrines–res judicata and collateral estoppel–and treated them as interchangeable. They are not. See Seaboard Coast Line R.R. Co. v. Indus. Contracting Co., 260 So. 2d 860, 862-63 (Fla. 4th DCA 1972) ("It is important to observe that there is a distinction between res judicata and estoppel by judgment sometimes referred to as ‘collateral estoppel.’ ").
For the doctrine of res judicata to preclude a subsequent action between parties to a previous judgment, there must be (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties to the actions, and (4) identity of the quality or capacity of the person for or against whom the claim is made.
....
In contrast to res judicata, collateral estoppel does not require identity of causes of action. See Brown v. State, 397 So. 2d 320, 322 (Fla. 2d DCA 1981). For the doctrine of collateral estoppel to preclude relitigation of an issue in a subsequent action, the parties and issues must be identical, and the particular matter must have been fully litigated and determined in a contest resulting in a final decision of a court of competent jurisdiction. Dep't of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906, 910 (Fla. 1995).
Campbell, 906 So. 2d at 295. "[U]nder res judicata, a judgment on the merits bars a subsequent action between the same parties on the same cause of action." State v. McBride, 848 So. 2d 287, 290 (Fla. 2003). "Res judicata ... prohibits not only relitigation of claims raised but also the litigation of claims that could have been raised in the prior action." Id. Because "[r]es judicata is an affirmative defense ... the burden of proof is borne by the party asserting it." Provident Funding Assocs., L.P. v. MDTR, 257 So. 3d 1114, 1117 (Fla. 2d DCA 2018) (first citing Fla. R. Civ. P. 1.110(d) ; then citing Nunez v. Alford, 117 So. 2d 208, 209-10 (Fla. 2d DCA 1960) ).
The Borrowers contend that res judicata prevents FOY from pursuing foreclosure because the "identity in the thing sued for" is the same. They assert that FOY failed to prove that the note was found and re-lost at any point between its initial 2013 foreclosure action and its most recent 2017 foreclosure action. Thus, because FOY unsuccessfully sought to reestablish the lost note in 2013, they claim "there is no new and independent basis to assert a claim to re-establish [sic] the lost note."
The question for us is whether the trial court's dismissal of FOY's earlier foreclosure action precludes FOY from pursuing a subsequent action to reestablish the lost note and foreclose. We hold that it does not.
Section 673.3091, Florida Statutes (2017), sets forth the requirements to enforce a lost note:
(1) A person not in possession of an instrument is entitled to enforce the instrument if:
(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument.
In reviewing this statutory language, the First District recently concluded that the statute "do[es] not create an independent cause of action." Mielke v. Deutsche Bank Nat'l Tr. Co., 264 So. 3d 249, 251 (Fla. 1st DCA 2019). Rather, the statute "recognizes that an entity not possessing an instrument is still entitled to enforce it if the entity meets certain conditions. The cause of action is the enforcement itself; section 673.3091 only sets forth special requirements if the plaintiff does not possess the instrument." Id. at 253. Therefore, the First District concluded that "the right to enforce a lost note, in the foreclosure context, travels with the breach that triggers the need to seek enforcement-default by a mortgagor. ... [S]ection 673.3091 does not create a standalone cause of action apart from a breach." Id.
We agree. Consequently, we reject the Borrowers attempt to decouple FOY's effort to reestablish the lost note from the foreclosure action. In ascertaining the effect that application of res judicata or collateral estoppel may have on FOY's remedies, the analysis focuses on the foreclosure action itself, not upon the lost note count effectively subsumed therein. Cf. Provident Funding Assocs., L.P., 257 So. 3d at 1117 ("The doctrine of res judicata provides that a judgment on the merits in an earlier suit bars a later suit on the same cause of action between the same parties or others in privity with those parties." (emphasis added) (citing Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) )).
We note "the unique nature of the mortgage obligation and the continuing obligations of the parties in that relationship." Singleton v. Greymar Assocs., 882 So. 2d 1004, 1007 (Fla. 2004). In Singleton, the court concluded that res judicata does not bar a subsequent foreclosure action on the same mortgage based on a distinct period of default. 882 So. 2d at 1006-07. "While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue" such that the subsequent foreclosure action "is not necessarily barred by res judicata." Id.; see, e.g., Desai v. Bank of N.Y. Mellon Tr. Co., 240 So. 3d 729, 731 (Fla. 4th DCA 2018) ("[T]he doctrines of res judicata and collateral estoppel did not prevent BNY from filing a second foreclosure complaint and relitigating those issues despite the involuntary dismissal with prejudice of its prior action where the case was not decided on the merits."). Rather, if a mortgagor successfully defends a foreclosure suit, "the mortgagor and mortgagee are simply placed back in the same contractual relationship with the same continuing obligations. Hence, an adjudication denying acceleration and foreclosure ... should not bar a subsequent action ... if the mortgagor ignores her obligations on the mortgage and a valid default can be proven." Singleton, 882 So. 2d at 1007.
After all,
foreclosure is an equitable remedy .... The ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage. We can find no valid basis for barring mortgagees from challenging subsequent defaults on a mortgage and note solely because they did not prevail in a previous attempted foreclosure based upon a separate alleged default.
Id. at 1008 (citation omitted); see also Bartram v. U.S. Bank Nat'l Ass'n, 211 So. 3d 1009, 1017-18 (Fla. 2016) ("Our recognition in Singleton that each new default presented a separate cause of action was based upon the acknowledgement that because foreclosure is an equitable remedy, ‘[t]he ends of justice require that the doctrine of res judicata not be applied so strictly so as to prevent mortgagees from being able to challenge multiple defaults on a mortgage.’ Singleton, 882 So. 2d at 1008. Thus, the failure of a mortgagee to foreclose the mortgage based on an alleged default did not mean the mortgagor had automatically and successfully defeated his or her obligation to make continuing payments on the note.").
Applying these principles, we conclude that res judicata did not bar FOY's foreclosure action:
Under Singleton, Provident's second foreclosure action is not barred by res judicata. The final judgment in the first foreclosure action did not make any determination that would invalidate the note and mortgage or preclude Provident from ever suing upon the note and mortgage; at most, it determined ... that Provident lacked standing at the time the first foreclosure action was filed and at the time Provident failed to respond to Ms. Groves’ requests for admission. Thus, after the first action was resolved in Ms. Groves’ favor, she and the lender were returned to their presuit contractual relationship under which she was obligated to make regular payments of principal and interest on the note. And as in Singleton, the second foreclosure complaint here is based on a separate and distinct period of default on that payment obligation from the period of default alleged in the first action.
Provident Funding Assocs., 257 So. 3d at 1119 (citation omitted); see Brown v. M & T Bank, 183 So. 3d 1270, 1270 (Fla. 5th DCA 2016) ("This foreclosure action presents an issue that does not appear to have been previously addressed in Florida: Whether the dismissal of a foreclosure action for lack of standing operates as an adjudication on the merits for purposes of res judicata. We hold that it does not, and affirm.").
As Singleton teaches, the parties are "simply placed back in the same contractual relationship with the same continuing obligations." 882 So. 2d at 1007. FOY may pursue foreclosure based upon the Borrowers’ subsequent defaults, each of which furnishes a separate cause of action. See Singleton, 882 So. 2d at 1007 ; see also Bartram, 211 So. 3d at 1019 ("[W]ith each subsequent default ... each new default provid[es] the mortgagee the right, but not the obligation, to accelerate all sums then due under the note and mortgage."). Thus, the trial court erred in applying res judicata/collateral estoppel to FOY's second foreclosure action.
III. Failure of proof is not a basis to reopen the evidence
FOY argues that the trial court should have granted its rule 1.530 motion "to present additional evidence regarding the assignment to Stonecrest." More specifically, FOY presented documents evincing a "transfer of ownership of the loan to Stonecrest and its right to enforce the lost note."
"On a motion for a rehearing of matters heard without a jury ... the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment." Fla. R. Civ. P. 1.530(a). "As a general rule, a trial court has broad discretion to allow a party to reopen its case and present additional evidence ...." Grider-Garcia v. State Farm Mut. Auto., 73 So. 3d 847, 849 (Fla. 5th DCA 2011). W e "review[ ] the denial of a motion to reopen a case for abuse of discretion." Loftis v. Loftis, 208 So. 3d 824, 826 (Fla. 5th DCA 2017) (citing Grider-Garcia, 73 So. 3d at 849 ). "Discretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ " Trease v. State, 768 So. 2d 1050, 1053 n.2 (Fla. 2000) (quoting Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990) ).
"Generally, to reopen a case, a party must establish two evidentiary predicates. The first predicate is that the presentation of evidence will not unfairly prejudice the opposing party and, second, that reopening will serve the best interests of justice." Gulf Eagle, LLC v. Park E. Dev., Ltd., 196 So. 3d 476, 479 (Fla. 2d DCA 2016). Also, when "exercising its discretion to reopen a case for additional evidence, the court should consider the timeliness of the motion, the character of the testimony, and the effect of granting the motion." Burk v. State, 497 So. 2d 731, 733 (Fla. 2d DCA 1986) (citing United States v. Walker, 772 F.2d 1172, 1177 (5th Cir. 1985) ). "Factors to consider in deciding whether to reopen a case include: ‘(1) the timeliness of the request, (2) the character of the evidence sought to be introduced, (3) the effect of allowing the evidence to be admitted, and (4) the reasonableness of the excuse justifying the request to reopen.’ " Lovelass v. Hutchinson, 250 So. 3d 701, 705 (Fla. 4th DCA 2018) (quoting Grider-Garcia, 73 So. 3d at 849 ).
The trial court, here, did not abuse its discretion. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) ("If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness."); Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269, 278 (Fla. 1st DCA 2012) ("We agree that the trial judge has discretion to decline to consider a new argument on rehearing .... We do not suggest that trial judges are required to consider new issues presented for the first time on rehearing. Our point is simply that they have the authority to hear new issues."). Our conclusion is guided by an examination of two not-entirely-unrelated factors–the character of the evidence sought to be introduced and the reasonableness of the excuse justifying the request to reopen.
FOY wanted to reopen its case to introduce "newly-discovered evidence as well as additional testimony to affirmatively establish the complete chain of transfers of the note and [FOY]'s standing." But, the Borrowers asserted that FOY lacked standing in their responsive pleading. Thus, FOY knew that the standing issue was joined for trial. See Derouin v. Universal Am. Mortg. Co., 254 So. 3d 595, 601 (Fla. 2d DCA 2018) ("An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination." (quoting Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989) )). Yet, FOY failed to prove its standing. And, we must note, "appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof." Morton's of Chicago, Inc. v. Lira, 48 So. 3d 76, 80 (Fla. 1st DCA 2010) ; see, e.g., Correa v. U.S. Bank N.A., 118 So. 3d 952, 957 (Fla. 2d DCA 2013) ("Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal effort to address this issue even after prodding by the trial court. There is simply no reason to afford it a second opportunity to prove its case.").
FOY included with its rule 1.530 motion a document entitled "Charged off, non-performing note, mortgage, and real estate owned sale agreement." This REO sale agreement, dated August 2012, stated that "Stonecrest purchased the subject loan from Bank of America, the last known entity to have possession of the subject original note prior to the loss of same." Bank of America was LaSalle's servicer in 2007 when LaSalle filed the original foreclosure action. Bank of America became the successor-by-merger to LaSalle following an October 2008 merger. This was the first time, however, that FOY alleged that it derived its standing from Bank of America by way of Stonecrest. This theory is completely at odds with, and contradictory to, the standing theory FOY advanced at trial, in which FOY claimed standing through the January 2012 mortgage assignment from MERS to Stonecrest, followed by the August 2012 assignment from Stonecrest to FOY.
To avoid this result, FOY frames its evidence as "newly discovered." We cannot agree. Newly discovered evidence is "evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing." Fla. R. Civ. P. 1.540(b)(2). The "newly discovered evidence" so critical to FOY existed well before trial. The posttrial trail of assignments described by FOY is not newly discovered evidence; it was, seemingly, "forgotten evidence." Cleveland v. Crown Fin., LLC, 212 So. 3d 1065, 1069 (Fla. 1st DCA 2017) ("Forgotten evidence does not constitute newly discovered evidence." (citing Resort of Indian Spring, Inc. v. Indian Spring Country Club, Inc., 747 So. 2d 974, 978 (Fla. 4th DCA 1999), for the holding that a recording that would support the losing party, and which had simply not been reviewed prior to trial, did not warrant reopening the evidence as it was not newly discovered evidence)); see also Allard v. Al–Nayem Int'l, Inc., 59 So. 3d 198, 202 (Fla. 2d DCA 2011) (stating that "a party's failure to prove damages is not a proper ground for rehearing" as "[r]ehearing is not intended as a device to present additional evidence that was available, although not presented, at the original trial" (quoting St. Petersburg Hous. Auth. v. J.R. Dev., 706 So. 2d 1377, 1378 (Fla. 2d DCA 1998) )). FOY failed to demonstrate it exercised due diligence in securing this evidence. See Resort of Indian Spring, Inc., 747 So. 2d at 978 ("Because motions for a new trial based on newly discovered evidence are looked upon with some disfavor as encouraging looseness in practice, it is the proponent's burden to prove due diligence in securing the evidence."). This is particularly so where FOY knew the Borrowers contested its standing. The trial court properly denied FOY's rule 1.530 motion.
Conclusion
We affirm the final judgment in favor of the Borrowers. Quite simply, FOY failed to prove its standing. We also conclude that the trial court properly denied FOY's rule 1.530 motion. However, to the extent the judgment barred FOY from pursuing foreclosure based on a lost note, we reverse.
Should FOY pursue further foreclosure remedies, it may be able to demonstrate its standing to enforce the note as assignee, as described in footnote 5, supra. We need not opine on that issue. Similarly, the parties have not raised and we do not address what preclusive effect, if any, the trial court's finding that FOY "established ... reestablishment of the lost note" may have on any subsequent litigation between the parties. See Mortg. Elec. Registration Sys., Inc. v. Badra, 991 So. 2d 1037, 1038-39 (Fla. 4th DCA 2008).
Affirmed in part; reversed in part; remanded.
KELLY and SMITH, JJ., Concur.