IN THE DISTRICT COURT OF APPEAL OF THE STATE OF

FLORIDA
for the

FOURTH DISTRICT
Case No.: 4D15-3054
Lower Tribunal Case No.: CACE08-032874
ADAM HOUCHINS,
Appellant,
v.
HSBC BANK USA, N.A. AS TRUSTEE
Appellee.
___________________________________________________
On Appeal from Broward County Circuit Court
Seventeenth Judicial Circuit
____________________________________________________
APPELLANTS INITIAL BRIEF
____________________________________________________
Rush Marshall Jones and Kelly, P.A.
Attorneys for Appellant
P.O. 3146
Orlando, FL 32802-3146
By: Andrew W. Houchins, for the firm
Florida Bar No. 59017
Email: ahouchins@rushmarshall.com
1
 Table of Contents
Table of Contents.2

Table of Citations.3

Introduction /Statement of the Facts and Case.4

Issues on Appeal
First Issue: Can a court can grant a Final Judgment of Foreclosure
when the court lacks Jurisdiction, where the case had been
dismissed for lack of prosecution and no timely notice of
good cause, motion for new trial or to vacate or appeal had
been filed by Appellee?
Second Issue: Can a court can grant a Final Judgment of Foreclosure
where Appellee lacks standing, fails to prove it had complied
with the notice of default provision and notice of assignment
provision, which are conditions precedent to the filing of a
foreclosure?

Standard of Review..8

Summary of Argument
I. The trial court erred in granting a Final Judgment of Foreclosure
to Appellee where the court lacked Jurisdiction, where the case
had been dismissed for lack of prosecution and no timely notice of
good cause, motion for new trial or to vacate or appeal had been filed
by Appellee..8

II. The trial court erred in granting a Final Judgment of Foreclosure

to Appellee where it lacked standing, where it failed to prove it had

complied with the notice of default provision and notice of assignment
provision, which are conditions precedent to the filing of a
foreclosure.13

Conclusion 25
Certificate of Service 25
Certificate of Compliance with Font Requirement.. 27

2
 TABLE OF CITATIONS
Balmoral Condominium Assn v. Grimaldi, 107 So.3d 1149, 1152 (Fla.3d DC
(2013).11
Barco v. School Bd. of Pinellas County, 975 So. 2d 1116, 1121 (Fla. 2008)..8

Blum v.Deutsche Bank Trust Co.,159 So.3d 920(2015).15

Correa v. U.S. Bank, N.A., 118 So.3d 952, 954(Fla, 2d DCA 2013)..8,16

Dixon v. Express Equity Lending Grp., 125 So.2d 965 (Fla. 4th DCA 2013)..8

Fla. Rule Civ. Pro. 1.530..8,9,10,11,12, 16

Fla. Rule Civ. Pro 1.5409,10,11,12,13

Fla. Stat. 90.803(6)..23

Fla. Stat. 559.715..,.7, 16

Francisco v. Victoria Marine Shipping, 486 So. 2d 1386, 1388

(Fla. 3d DCA 1986) ....12

Gee v. U.S. Bank Nat. Ass'n, 72 So.3d 211, 214 (Fla. 5th DCA2011).18

Groover v. Walker, 88 So. 2d 312, 315 (Fla. 1956).14

Havens v. Chambliss, 906 So.2d 318 (Fla. 4th DCA 2005)..10

Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014)24

Holt v. Calchas, 155 So. 3d 499, 507 n.4 (Fla. 4th DCA 2015)16

Jauregui v. Bobbs Piano Sales & Service, 922 So. 2d 303, 305
(Fla. 3d DCA2006)14
Kippy Corp. v. Colburn, 177 So. 2d 193, 199 (Fla. 1965) 12

Lacomb v. Deutsche Bank National Trust, Case No. 1D13-4094

(1st DCA,2014)16, 17, 18, 19, 20, 21, 22, 23, 24
LaFrance v. U.S. Bank Nat. Ass'n, 141 So.3d 754, 756 (Fla. 4th DCA 2014)20

3
Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011)..18, 24

McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA
2012)..23

Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)11, 13

Nahoom v. Nahoom, 341 So.2d 257, 259 (Fla. 3d DCA 1977).11

Reform Party of Florida v. Black, 885 So. 2d 303, 310 (Fla. 2004)8

Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So. 2d 1, 3 (Fla. 1970)..10,12

INTRODUCTION/STATEMENT OF THE FACTS AND OF THE CASE

The lower court action involves a foreclosure filed with

respect to property

owned by Appellant. A complaint was filed against Appellant on

July 21, 2008.

On December 14, 2010, the lower court issued a notice of lack of

prosecution on

the basis that there had been no record activity in the case for ten
(10) months.

(R-107). The notice of lack of prosecution put the Plaintiff in the

lower court

action (hereinafter Appellee) on notice that the action would be

dismissed unless

record activity occurred within sixty (60) days of the notice of lack
of prosecution,

or unless Appellee showed good cause why the case should not
be dismissed. On

February 16, 2011, the court dismissed the action because no

record activity had
4
occurred within sixty (60) days of the notice and Appellee had not
shown good

cause why the case should not be dismissed. (R-107).

On March 29, 2011, Appellee filed a motion for summary

judgment. On

April 1, 2011, Appellee filed a showing of good cause. (R-134-

135). However,

the showing of good cause was factually incorrect, stating that

Appellee had filed

its motion for summary judgment on March 29, 2010 instead of

the date it was

actually filed, on March 29, 2011. Since the showing of good

cause was factually

incorrect and not true, it could have not constituted good cause
as a matter of law

since it was in fact erroneous, false and filed after the case had
been dismissed on

February 16, 2011 and not before dismissal, as required by the

notice. On

April4, 2011, forty-seven (47) days after the action had been
dismissed,

an order was entered stating that the Plaintiff had shown good
cause why the case

should not be dismissed and that the case should remain active
(although there is

5
no signed original order in the court file, Appellee presented a
conformed copy of

the order to the lower court). No activity occurred in the case

subsequently

until Appellee filed a motion for substitution of counsel on

September 27, 2013.

Appellant objected to the motion to substitute on the basis that

the case was

dismissed. A hearing was held on the motion to substitute on

November 19, 2013.

At the hearing, the presiding judge took the matter under

advisement and

subsequently recused himself from the case. On June 5, 2014, the

Court entered

an order granting Plaintiffs substitution of counsel. On November

19, 2014,

counsel for Appellee filed a notice of readiness for trial. (R-151-

154). On

January 6, 2015, Appellant filed a motion for sanctions against

Appellee under

Florida Statute 57.105 on the basis that Appellee was pursuing a

case which was

dismissed. (R-164-169). On January 22, 2015, a hearing was held

on Appellants

motion for sanctions before the Honorable Lynn Rosenthal. At the

hearing, Judge

6
Rosenthal entered an order confirming that the case was
dismissed, nunc pro tunc

to February 16, 2011. (R-203). Appellee filed a motion for

rehearing on January

28, 2015. (R-206-210). The court granted the motion for rehearing
on April 28,

2015 and a rehearing was held on June 23, 2015. (R-216-217). At

the rehearing,

Appellant argued that the court no longer had jurisdiction as the

case had been

dismissed by a final, and no longer appealable order, and that the

court did not

have jurisdiction when it entered the April 4, 2011 order granting

Appellees

showing of good cause which had been entered by another Judge,

Michael Gates.

Despite Appellants argument, the court entered an order finding

that the February

16, 2011 dismissal had been vacated by the order granting

showing of good cause

entered on April 4, 2011 and that the case should remain active.
(R-216). The

matter was set for trial on July 31, 2015 before the Honorable
Circuit Court Judge

Diana Sobel.

7
 At the trial of the case on July 31, 2015, at the close of
Appellees case for

foreclosure, Appellants attorney moved for an involuntary

dismissal on three

grounds (Transcript, Page 56, lines 12-13). The first ground was a
lack of standing

(Transcript, Page 56, lines 13-14) due to the fact that Appellee
was not in

possession of the original note on the date the foreclosure was

filed (Transcript,

Page 56, lines 14-16). It was also pointed out that Appellees
attorney was not in

possession of the original note at the time the foreclosure was

filed either and that a

lost note count had been added to the complaint (Transcript, Page
56, lines 18-20).

The second ground for involuntary dismissal of the

foreclosure case was that

Appellee failed to establish that it had complied with the default

notice

requirement contained in paragraph 22 of the mortgage by giving

notice to

Appellant at the address specified by Appellant (Transcript, Page

57, lines 1-12),

or that Appellee complied with paragraph 15 of the mortgage

(Transcript, Page 57,

8
lines 13-19) or with paragraph 20 of the mortgage (Transcript
Page 57, lines 20-25,

Page 58, lines 1-3).

The third ground for involuntary dismissal was Appellees

failure to

establish that it had complied with Fla. Stat. 559.715, the

assignment of consumer

debt provision. No notice of the assignment of consumer debt was

provided as a

part of Appellees case (Transcript, Page 59, lines 9-16). All three
of Appellants

grounds for involuntary dismissal, lack of standing, failure to

comply with the

default notice requirements and failure to comply with the notice

of assignment of

consumer debt requirements, are all conditions precedent for

which failure to

comply with said provisions are fatal to Appellees cause of action

for foreclosure.

Despite these failures by Appellee to establish its case, the court

entered a Final

Judgment of Foreclosure in favor of Appellee and against

Appellant. This appeal

follows.

STANDARD OF REVIEW

9
 This Courts review is de novo. See Reform Party of Florida v. Black, 885

So. 2d 303, 310 (Fla. 2004) (finding that to the extent that [a] decision rests on a

question of law, the order is subject to full, or de novo, review on appeal.); Barco

v. School Bd. of Pinellas County, 975 So. 2d 1116, 1121 (Fla. 2008) (explaining

that appellate courts apply a de novo standard of review when the construction of

a procedural rule is at issue). Because the Final Judgment issued from a court

based on a bench trial and Appellant challenges the sufficiency of the evidence to

support the judgment, the general rule requiring specific contemporaneous

objection to preserve the asserted error for appeal does not apply. Rule 1.530 (e)

applies to appeals challenging the sufficiency of the evidence in mortgage

foreclosure actions after bench trial. See Correa v. U.S. Bank, N.A., 118 So.3d 952,

954(Fla, 2d DCA 2013). Accordingly, Appellants challenge to the sufficiency of

the evidence is properly before this court. We review the sufficiency of the

evidence to prove standing to bring a foreclosure action de novo. Dixon v. Express

Equity Lending Grp., 125 So.2d 965 (Fla. 4th DCA 2013).

ARGUMENTPOINT I

The trial court erred in granting a Final Judgment of Foreclosure to Appellee

where the court lacked Jurisdiction, where the case had been dismissed for lack of

10
prosecution and no timely notice of showing of good cause, motion for new trial or

motion to vacate or appeal had been filed by Appellee.

In the case before the court an Order dismissing the case dated February 11,

2011 became final thirty (30) days after entry of the Order, on March 13, 2011,

unless a motion for a new trial under Fla. R. Civ. Pro. 1.530 or a motion to vacate

under Fla. R. Civ. Pro. 1.540 for the five enumerated reasons set forth within the

rule was filed, or the Order was appealed. The docket in this case clearly

establishes that no such motions were filed and no notice of appeal was filed. At

that time the Order dismissing the case for lack of prosecution became final. No

motion to vacate the Order of dismissal was filed within the year since the Order

became final on March 13, 2011. The trial court lost the authority to reconsider its

entry of the final order of dismissal and it became final for all time, subject only to

a timely motion to vacate filed within one year for one of the five reasons

enunciated in Fla. R. Civ. Pro. 1.540. The trial court did not have jurisdiction to

enter the order vacating the dismissal of the order of dismissal for lack of

prosecution and Appellant is entitled to reversal of that Order and reinstatement of

the Order of dismissal.

Further, the trial court improperly vacated the order of dismissal of the case

for lack of prosecution by improperly finding that the Appellee had made a

showing of good cause. Good cause is defined as having two (2) prongs: (1)

11
some contact with the opposing party and (2) some form of excusable conduct or

occurrence which arose other than through negligence other than to inattention to

pleading deadlines. However, Appellee did not plead and did not show any contact

with the opposing party, because no contact with the opposing party occurred.

Having contact with the opposing party is mandatory: [u]nless a party can satisfy

the exceptions provided for in the rule, it specifically states shall dismiss and

there is no discretion on the trial courts part if it is demonstrated to the trial court

that no action toward prosecution has been taken within a year. Havens v.

Chambliss, 906 So.2d 318 (Fla. 4th DCA 2005). Neither prong of the two-prong test

for good cause was met by Appellee. Further, the filing of the showing of good

cause was not timely. Since good cause was not shown, the trial court had no

discretion and the order of dismissal for lack of prosecution should not have been

vacated and the dismissal should be reinstated.

From an historical view, for over 40 years the Florida Supreme Court has

been unwavering in its view that [e]xcept as provided by Rules 1.530 and 1.540,

Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or

vacate an order or judgment. Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236

So. 2d 1, 3 (Fla. 1970). And the 3d DCA has repeatedly and consistently held that

once a [final order] becomes finalas wherea motion for rehearing under rule

12
1.530 has been denied or no such motion is filed and the ten days for filing same

has expiredthe trial court loses jurisdiction to rehear the [final order] on the

merits. Balmoral Condominium Assn v. Grimaldi, 107 So.3d 1149, 1152 (Fla.

3d DCA 2013); accord, Nahoom v. Nahoom, 341 So.2d 257, 259 (Fla. 3d DCA

1977) (explaining that [i]t is well-established that the trial court loses jurisdiction

of a case with the expiration of the time for filing a motion for rehearing or upon

the disposition of such motion, if filed). A trial court cannot revisit the merits of

its entry of a final order under any circumstances unless a timely rule 1.530 motion

or 1.540 motion is filed. No such motion was filed in this case. So the trial court

did not have jurisdiction to enter an order vacating its prior order of dismissal. As

a result, the order is void and must be reversed by this Court.

As explained below, a trial court loses jurisdiction to consider a case on its

merits if no motion for rehearing is filed within 15 days of the entry of a final

vacating the order of dismissal was entered without jurisdiction and is void as a

matter of law. As the Supreme Court of Florida has explained, [a] trial judge is

deprived of jurisdiction, not by the manner in which the proceeding is terminated,

but by the sheer finality of the act, whether judgment, decree, order or stipulation

which concludes litigation. Miller v. Fortune Ins. Co.,484 So.2d 1221,1223 (Fla.

1986) (emphasis added).

13
 It has been settled law in Florida for at least 50 years that a trial court has

no authority to modify, amend or vacate a final order, except in the manner and

within the time provided by rule or statute. Shelby Mutual Ins. Co. of Shelby,

Ohio v. Pearson, 236 So. 2d 1, 4 (Fla. 1970) (quoting Kippy Corp. v. Colburn, 177

So. 2d 193, 199 (Fla. 1965)). At common law a trial court had absolute control

over its orders and judgments and could amend, correct, open, or vacate them at

any time during the term at which they were rendered. Francisco v. Victoria

Marine Shipping, 486 So. 2d 1386, 1388 (Fla. 3d DCA 1986). But that rule was

abrogated by the adoption of the rules of civil procedure, which provide for two

mechanisms by which a trial court can reconsider and correct its prior decision.

Id. at 389. One is a timely and authorized Rule 1.530 motion for rehearing, and the

other is a Rule 1.540 motion for relief from judgment. And the law is clear that

[e]xcept as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure,

the trial court has no authority to alter, modify or vacate an order or judgment.

Pearson, 236 So.2d ___ 12 at 3.

The Florida Supreme Court succinctly explained the jurisdiction of the Florida trial

courts as follows:

A trial judge is deprived of jurisdiction, not by the manner in which the

proceeding is terminated, but by the sheer finality of the act, whether judgment,

decree, order or stipulation, which concludes litigation. Once the litigation is

14
terminated and the time for appeal has run, that action is concluded for all time.

There is one exception to this absolute finality, and this is rule 1.540, which gives

the court jurisdiction to relieve a party from the act of finality in a narrow range of

circumstances. Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986)

(emphasis added).

ARGUMENTPOINT II

As stated previously in Appellants initial brief, despite the trial court having

no jurisdiction over this matter for the reasons set forth above, the court

nonetheless set the matter for trial and held a final hearing and bench trial on this

foreclosure case on July 31, 2015, which was held before Judge Diana Sobel. This

was not the judge originally assigned. The case had been previously assigned to

Circuit Court Judge Joel Lasarus. Judge Lasarus recused himself from the case sua

spomte. Thereafter the case was assigned to Circuit Judge Lynn Rosenthal. Judge

Rosenthal entered the Order dismissing the case for lack of prosecution and later

confirmed that the case had been so dismissed. However, Circuit Judge Michael

Gates had presided over the Appellees untimely submission of an alleged

showing of good cause, which, for reasons explained earlier in the Brief, did not

constitute good cause. After Judge Gates entered an Order vacating the dismissal,

Judge Rosenthal than reversed herself at a further hearing and stated that the Order

of Judge Gates acted to vacate the Order of Dismissal for lack of prosecution and

15
stated that the case should remain pending. The case was then assigned to Circuit

Judge Diana Sobel. Judge Sobel conducted the trial of the case on July 31, 2015

which resulted in the Final Judgment of Foreclosure in favor of Appellee and

against Appellant. The judicial assignments can be verified through viewing of the

record. Appellant brings this out only to emphasize that there were a number of

successor judges involved in this case resulting in having one judge vacate the

dismissal, resulting in the Judge originally granting the dismissal reversing herself

based upon the other judge vacating the dismissal. The case was then assigned to

another Judge who presided over the trial. This is not proper judicial procedure. As

stated in the case of Groover v. Walker, 88 So. 2d 312, 315 (Fla. 1956) a successor

judge may not correct errors of law committed by his predecessor and hence he

cannot review and reverse on the merits and on the same facts the final orders and

decrees of his predecessor. As stated in Jauregui v. Bobbs Piano Sales & Service,

922 So. 2d 303, 305 (Fla. 3d DCA 2006), it is quite obvious that the successor

judge lacked the power or authority to revisit, much less reverse, the previous

decision on the merits. The power of a trial judge to reverse another sitting judge

of the same court should be limited. This is an additional reason why the vacating

of the order of dismissal in this case should be reversed and the order of dismissal

reinstated.

16
 As previously stated, at the close of Appellees case, Appellants attorney

moved for an involuntary dismissal on three grounds: (1) lack of standing by

Appellee who was not in possession of the original note on the date the foreclosure

was filed, nor was Appellees attorney in possession of the note, judging by the

lost note count added to the foreclosure complaint. (2) lack of proof of

compliance with the default notice and acceleration provision of the mortgage and

(3) lack of proof of compliance with the notice of assignment provision of the

mortgage. Said defects are all conditions precedent to the filing of a foreclosure

and are fatal to Appellees cause of action for mortgage foreclosure.

It is well settled that the mortgagees failure to prove it had complied with

the mortgage default notice provision required dismissal. In the case of Blum v.

Deutsche Bank Trust Co.,159 So.3d 920(2015), Deutsche Bank failed to prove that

it had complied with the mortgage notes contractual requirement to mail a notice

of default to Appellant at the notice address. For notice purposes, the notice

address is defined as the address of the subject property being foreclosed, unless

another address is specified. In the case at bar, there were at least three (3)

addresses, the property address in Fort Lauderdale, Florida and two (2) California

addresses. There was some testimony at trial that the acceleration letter went to one

location and other letter notices went elsewhere. It was pointed out by Appellants

attorney that compliance with the default notice provision was a condition

17
precedent to the filing of a foreclosure. It was also pointed out that this was a

violation of paragraph 20 of the mortgage, which stated in pertinent part as

follows: [n]either Borrower nor Lender may commence any judicial action

that arises from the other partys actions pursuant to this security instrument or that

alleges that the other party has breached any provision of, or any duty owed by

reason of, this security instrument until such Borrower or Lender has notified the

other party or such alleged breach and afforded the other party hereto a

reasonable period after the giving of such notice to take corrective action.

Deutsche Banks failure to comply with the condition precedent to filing suit

requires a dismissal of the case. See Holt v. Calchas, 155 So. 3d 499, 507 n.4 (Fla.

4th DCA 2015) (reversing a dismissal because there was insufficient evidence that

notice of default was sent). It should also be noted that the Final Judgment was

based upon a bench trial. In Lacomb v. Deutsche Bank National Trust, Case No.

1D13-4094 (1st DCA, 2014), because the Final Judgment was based on a bench

trial and Appellants challenge the sufficiency of the evidence to support the

judgement, the general rule requiring specific contemporaneous objection to

preserve the asserted error for appeal does not apply. Rule 1.530(e) applies to

appeals challenging the sufficiency of the evidence in mortgage foreclosure actions

after bench trial. See Correa v. U.S. Bank, N.A., 118 So. 3d 952, 954 (Fla. 2d DCA

2013). Accordingly, Appellants challenge to the sufficiency of the evidence to

18
prove standing to bring a foreclosure action is reviewed de novo. Likewise, in the

case at bar, Appellants attorney challenged the sufficient of the evidence to prove

Appellees standing, and Appellants challenge is also properly before this court.

In Lacomb, the court went into a detailed analysis of the Appellants

challenge to the sufficiency of the evidence to support the judgment, including the

issues of standing and notice, as in the instant case here.

In the case at bar during the bench trial of the case, Appellants attorney challenged

the sufficiency of the evidence to prove Appellees standing and whether Appellee

had complied with the default notice requirement, with notice of acceleration, and

with notice of assignment pursuant to Florida Statute 559.715, and whether

Appellee had sufficiently proven that it had met all conditions precedent before

filing the foreclosure complaint. This including questioning the various exhibits

and Appellees corporate witness and examining its business records exception to

the hearsay rule. Appellees evidence was insufficient on the prove of standing,

notice of default, notice of acceleration, notice of assignment and whether Appellee

performed all conditions precedent.

The first DCA in Lacomb undertook a similar analysis, as follows:

Deutsche Bank alleged in its complaint that it was the owner of the note.

In every pleading and other filing, Appellants denied this allegation.

Appellants raised the affirmative defense that Deutsche Bank lacked

19
standing to enforce the note and failed to acquire an interest in the note

prior to the filing of the lawsuit. See Mazine v. M & I Bank, 67 So.3d 1129

(Fla. 1st DCA 2011) (party seeking foreclosure must prove it owns and holds

note and mortgage to establish standing). Accordingly, throughout the

litigation Appellants disputed the fact of Deutsche Bank's right to enforce

the note and attendant standing to maintain an action for foreclosure.

Deutsche Bank's ownership of the note was thus an issue it was required to

prove. Gee v. U.S. Bank Nat. Ass'n, 72 So.3d 211, 214 (Fla. 5th DCA 2011)

(When [defendant] denied that U.S. Bank had an interest in the Mortgage,

ownership became an issue that U.S. Bank, as the plaintiff, was required to

prove.). In the case at bar since Appellant denied Appellees ownership of

the note and its standing, Appellees ownership of the note was an issue it

was required to prove. Appellee failed to meet its burden of proof.

Continuing its analysis of the sufficiency of the mortgagees evidence

in regard to whether it had established standing to foreclose, the court

stated as follows:

At trial, as proof of its ownership and standing to enforce the note,

Deutsche Bank presented the testimony of Andrew Benefield, case manager

for Select Portfolio Servicing (SPS), and five exhibits. Exhibit 1 was a

Limited Power of Attorney under which SPS obtained certain powers from

20
JPMorgan Chase Bank, N.A. (described as Master Servicer) and Deutsche

Bank National Trust Company as Trustee (described as Trustee) in

connection with all mortgage or other loans serviced by Master Servicer

including foreclosure on the Trustee's interest in mortgage notes. Attached

to the Power of Attorney was Exhibit A, a list of thirty-five Pooling and

Servicing Agreements governing groups of asset-backed certificates.

While exhibit 1 shows that JPMorgan Chase and Deutsche Bank transferred

certain powers to SPS in 2013, it is not clear from Exhibit 1 or Mr.

Benefield's testimony that the particular note and mortgage executed by

Appellants in 2005 and endorsed by Tower Mortgage to Long Beach

Mortgage Company is one of the mortgages affected by one of the multitude

of pooling and servicing agreements referenced in the attachment.

Exhibit 2 consisted of the note and mortgage. As previously noted, the only

indorsement of the note was from Tower Mortgage to Long Beach Mortgage

Company. Deutsche Bank's Exhibit 3 consisted of a collection of nine pages

from one or more documents. The first page of this exhibit is a title page of

a Pooling and Servicing Agreement with the phrase dated as of March 1,

2006 under the title. The parties listed on this page are Long Beach

Securities Corp., Long Beach Mortgage Company, and Deutsche Bank

National Trust Company. The next five pages of the exhibit are signature

21
and notarization pages. The seventh page is entitled Summary of Terms

and states: The following summary highlights selected information from

this prospectus supplement. It does not contain all of the information that

you need to consider in making your investment decision. To understand

the terms of the offered certificates, read carefully this entire prospectus

supplement and the accompanying prospectus. The final three pages of

Exhibit 3 appear to be computer-generated print-outs of single lines of data

which might or might not correspond to Appellants' note and mortgage.

These pages were not authenticated by the witness and their significance

was not explained by Mr. Benefield's testimony or any other evidence. See

LaFrance v. U.S. Bank Nat. Ass'n, 141 So.3d 754, 756 (Fla. 4th DCA 2014)

(reversing summary judgment for Bank due to failure of proof that Bank

was owner of note prior to filing of complaint; loan servicing records

without any explanation failed to prove Bank was owner of note). In

Appellants case Appellee also failed to prove that it was the owner of the

note prior to filing the complaint. Appellants attorney established that

Appellee was not in possession of the note at the time it filed its foreclosure

complaint, and neither was Appellees attorney, who had added a lost

note count to the complaint, showing the attorney was not in possession of

22
the note either. Continuing its analysis of the sufficiency of the evidence,

the court stated as follows:

Although Mr. Benefield repeatedly testified that he was relying on the

pooling and servicing agreement for proof that Deutsche Bank had

standing to enforce the note, no actual pooling and servicing agreement,

indorsement, or other evidence of negotiation of the note at issue from

Long Beach Mortgage Company to any entity is contained in Plaintiff's

Exhibit 3 or elsewhere in the record. Deutsche Bank's evidence to prove its

right to enforce the Note, including Mr. Benefield's testimony, is

incoherent. Mr. Benefield testified that he did not know why pooling and

service agreements were so entitled, did not know whether Exhibit 3 was a

composite exhibit from several documents or an incomplete copy of a single

document, and did not address the meaning of the page which referenced a

Prospectus Settlement and information to consider in making your investment

decision. Exhibit 3 fails to support any finding that the Note between

Tower Mortgage and the Lacombes was ever negotiated, by subsequent

indorsement or otherwise, to Deutsche Bank. The composite document

admitted as Exhibit 3 and the testimony of Mr. Benefield were not

competent or substantial evidence even to tend to prove Deutsche Bank's

standing to enforce the Note. As in Lacomb, the evidence of Appellee and

23
Appellees business records witness was not competent or substantial

evidence tending to prove Appellants standing to enforce the note.

Continuing its analysis of the evidence, the court stated:

Exhibit 4 was a copy of a letter entitled Notice of Intent to Accelerate,

addressed to Mrs. Lacombe from Washington Mutual in Chatsworth

California, dated December 5, 2007. The letter has no certificate of service,

return receipt, or other indication from a courier or delivery service that it

was actually received by the addressee. Appellants' pleadings consistently

denied ever receiving this letter. Although Mr. Benefield was questioned

about this document, he had no personal information about its authenticity

or delivery. It was never suggested that he ever worked for Washington

Mutual or had any knowledge about the creation of the letter or about

Washington Mutual's business practices regarding such letters, as would be

required to admit the hearsay document as a business record. See

90.803(6), Fla. Stat. Likewise, Appellees witness in this case had no

personal information about the authenticity or delivery of the exhibits

about which she was testifying. The court, continuing, stated:

Finally, Deutsche Bank's Exhibit 5 was submitted as a payment

history for the debt at issue. The computer-generated pages indicate

preparation by SPS for some pages and Washington Mutual Bank for other.

24
Counsel for Appellants objected to the lack of foundation to admit this

hearsay document into evidence and noted that Mr. Benefield was not a

records custodian for SPS or any of the previous loan servicers. See

90.801, 90.803(6), Fla. Stat. The court overruled the objection without

discussion and the document was admitted into evidence. Likewise in the

case as bar Appellants attorney objected to the lack of foundation to admit

hearsay documents into evidence and said documents were admitted by the

trial court over objection.

It is well-settled that: A plaintiff who is not the original lender may

establish standing to foreclose a mortgage loan by submitting a note with a

blank or special endorsement, an assignment of the note, or an affidavit

otherwise proving the plaintiff's status as the holder of the note. McLean v.

JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012).

But standing must be established as of the time of filing the

foreclosure complaint.(emphasis added).Again, in the case at bar

Appellee never established standing to enforce the note at the time of the

filing of the foreclosure. The note was not even in Appellees possession at

the time it filed the complaint. Continuing its analysis, the court stated:

Even if exhibits 1, 3, 4 and 5admitted by the trial courthad been

relevant, properly authenticated, and qualified for the business records

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exception to the hearsay rule, see Hunter v. Aurora Loan Services, LLC,

137 So.3d 570 (Fla. 1st DCA 2014), none of Deutsche Bank's exhibits

qualifies as an indorsement from Long Beach Mortgage, or an affidavit

otherwise proving the plaintiff's standing to bring the foreclosure action on

the note and mortgage at issue as a matter of law. Likewise, the record

contains no assertion or proof by Deutsche Bank of its standing under any

means identified in section 673.3011, Florida Statutes. See Mazine v. M & I

Bank, 67 So.3d 1129, 1130 (Fla. 1st DCA 2011). Absent evidence of the

plaintiff's standing, the final judgment must be reversed. As in Lacomb,

absent sufficient evidence of Appellees standing the final judgment must

be reversed. The court concluded:

The final judgment of foreclosure is reversed due to the insufficiency

of the evidence to support the judgment. This case is remanded for the

entry of an order of involuntary dismissal of the action. The same result

should prevail in this case before the court. The final judgment of

foreclosure should be reversed due to insufficiency of the evidence to

support the judgment.

CONCLUSION

Based upon the record of the case, the facts, the legal arguments and legal

authorities set forth in this brief, Appellant respectfully requests that this

26
Honorable court enter a mandate reversing the trial courts order vacating the order

of dismissal for lack of prosecution, reinstating the dismissal and remanding the

case for further proceedings consistent with the courts decision.

___________________
January , 2016

Respectfully Submitted,

/s/ Andrew W. Houchins

_______________________________
Andrew W. Houchins
Florida Bar No.: 59017
Rush, Marshall, Jones and Kelly, P.A.
P.O. Box 3146
Orlando, FL 32802
Telephone: 407-425-5500
Facsimile: 407-423-0554
Email:
ahouchins@rushmarshall.com

CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of July, 2015, I have

caused a true and

correct copy of Petitioners Writ of Prohibition to be efiled with

EDCA, Fourth

District Court of Appeal, and a true and correct copy of the

foregoing was sent by

email on the _____ day of January, 2016, to the parties as follows:

The Honorable Diana Sobel

Circuit Court Judge
27
Broward County Courthouse
201 SE 6th Street
Ft. Lauderdale, FL 33301
dsobel@17th.flcourts.org

MORRIS, LAING, EVANS, BROCK & KENNEDY, CHTD.

505 S. Flagler Drive, Suite 400
West Palm Beach, FL 33401
Email: dknobel@morrislaing.com
jharris@morrislaing.com
Fl-litigation@morrislaing.com
Co-Counsel for Respondent

Alicia Gale Windsor, Esq.

Clarfield, Okon, Salomone & Pincus, P.L.
500 Australian Avenue, Suite 730
West Palm Beach, FL 33401
Email: pleadings@cosplaw.com
Co-Counsel for Respondent

Paul Alexander Bravo, Esq.

P.A. Bravo
17 Sevilla Avenue
Miami, FL 33134
Email: service@pabravo.com
Counsel for Mortgage Electronic Registration Systems, Inc.

Thomas D. Graham, Esq.

Coffey Burlington, P.L.
Office in the Grove, Penthouse
2699 South Bayshore Drive
Miami, FL 33133
Email: service@coffeyburlington.com

Counsel for Trust Mortgage

28
Straley & Otto, P.A.
2699 Stirling Road, Suite C207
Ft. Lauderdale, FL 33312
Email: attorney@straleyottopa.com
kpeters@straleyottopa.com

/s/ Andrew W. Houchins

_______________________________
Andrew W. Houchins

CERTIFICATE OF FONT SIZE

I HEREBY CERTIFY that Appellants Petition for Writ of

Prohibition has

been submitted in Times New Roman 14-point type, a font that is

proportionately

spaced and complies with the font requirements of Florida Rules

of Appellate

Procedure 9.210(a)(2).

/s/ Andrew W. Houchins

_______________________________
Andrew W. Houchins

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