WELLS FARGO BANK, N.A. v. BOHATKA No. 1D11-3356.
112 So.3d 596 (2013)
WELLS FARGO BANK, N.A., as Trustee for Option One Mortgage Loan Trust 2005-5 Asset-Backed Certificates, Series 2005-5, Appellant, v. William BOHATKA, et al., Appellee.
District Court of Appeal of Florida, First District.
Rehearing Denied May 24, 2013.
Sharon Delene Regan, Regan & Roark, Pensacola, and Gregory B. Wilhelm, Law Offices of Martinez & Wilhelm, PA, Gulf Breeze, for Appellee.
Wells Fargo Bank, N.A., appeals the dismissal with prejudice of its initial complaint seeking to foreclose the mortgage on property owned by William and Gail Bohatka. The bank claims the trial court erred by going beyond the four corners of its complaint. We agree and hold that, although dismissal of the initial complaint was proper, dismissal with prejudice was not. We further hold that the trial court's sua sponte physical examination of the original of the promissory note at issue was improper and precluded the orderly process by which contested facts are adjudicated. We reverse.
In its initial complaint, the bank alleged that it was "the owner and holder of all real and beneficial interests in the subject Promissory Note and Mortgage ... by virtue of an unconditional equitable transfer to [the bank] of all real and beneficial interests in the subject Promissory Note and Mortgage which occurred prior to the commencement of this action." The bank attached a copy of the note, which identified "Option One Mortgage Corporation" (Option One) as the lender, and a copy of the mortgage, which also identified Option One as the lender.
At this point, the allegations in the initial complaint and its attachments created an inconsistency as to who was the true owner of the note: the bank or Option One? For this reason, the Bohatkas moved to dismiss the complaint, asserting the bank lacked standing to sue them on the note.
At the hearing on the motion to dismiss,
We pause to note that an "allonge" is a legal term of art of French origin
The bank's counsel explained that the original allonge had been sent to the clerk's office, which had not yet received it. The Bohatkas' counsel objected to consideration of the allonge, in part, because it was "outside the record" for purposes of a motion to dismiss and that he had no opportunity to rebut it on such short notice. Nonetheless, at the urging of the Bohatkas' trial counsel, the trial court under took a physical examination of the original note (which was in the court file), which is reflected in the statement of evidence:
Based upon its inspection, the trial court found no indicia that an attachment to the original note had been made and therefore granted dismissal of the bank's complaint with prejudice. It stated:
The court also granted attorneys' fees to the Bohatkas (based on language in the mortgage) and reserved jurisdiction as to the amount; additionally, it expressed that because "fraud may have been perpetrated upon this Court" it "reserved the ability to file a formal complaint with the Attorney General."
The bank sought to undo the trial judge's ruling by moving to vacate and set aside the dismissal. It argued that even if its initial complaint did not adequately allege the bank's standing, dismissal with prejudice was inappropriate because the complaint could be amended to do so. As additional support for its motion, the bank filed a "Supplement in Support," which contained four exhibits: an affidavit of ownership, dated April 25, 2011, stating "[the bank] is the owner and holder" and "[the bank] currently has the original promissory note"; a pooling and servicing agreement dated in 2005 listing it as trustee; a schedule of that pooling and service agreement listing the loan at issue within that pool; and a modification agreement between the bank and the Bohatkas. The Bohatkas responded by presenting a document that purported to show that Option One was a "suspended" entity and could not have issued the allonge subsequent to its suspension. They also maintained that the allonge was not as "firmly affixed" to the note as the law required.
Two issues are presented. The first is whether the trial court erred in dismissing the bank's initial complaint with prejudice for lack of standing. The second is whether it erred in undertaking a judicial examination of the original promissory note in the court file. Both are interrelated.
It is a bedrock principle that a trial court's review of a motion to dismiss is limited to the four corners of the challenged complaint. As this Court noted long ago, "a court may not properly go beyond the four corners of the allegations of the complaint when considering a motion to dismiss it." Thomas v. Rollins,
In this case, we do not fault the trial judge for dismissing the bank's initial complaint, which facially created a contradiction between who the bank alleged was the owner of the note (the bank) and whom the attached note and mortgage identified as the owner (Option One). Putting aside (for the moment) the parties' attempts to interject or examine materials outside the pleadings, dismissal without prejudice was appropriate simply to allow the bank an opportunity to amend its initial complaint to address this discrepancy and to fortify its allegations and attachments (perhaps with the allonge and some of the items the bank presented in support of its motion to vacate and set aside).
Dismissal with prejudice, however, was improper. Though the tone of the trial judge's order made it sound as if dismissal was a sanction, it explicitly said it was not doing so on that basis. Had it done so, it would have been an abuse of discretion due to the lack of evidence to support such a sanction. See Deutsche Bank Nat'l Trust Co. v. Lippi,
Instead, the ostensible basis for dismissal with prejudice was that the initial complaint could not be amended to state a claim for which the bank had standing, a determination we review de novo. See Magnum Capital, LLC v. Carter. Assoc., LLC,
We know of no appellate case affirming a dismissal of an initial complaint with prejudice under like circumstances; it would be a rare bird in the judicial aviary. The trial court had before it the documents upon which the bank would likely rely for an amended complaint: the allonge, the affidavit of ownership, the pooling/servicing agreement and its schedule, and the bank's modification agreement with the Bohatkas. Liberality in amendment to the bank's initial complaint was plainly required.
Recent mortgage foreclosure litigation at the motion to dismiss stage has uniformly resulted in appellate courts reversing dismissals of complaints with prejudice. See, e.g., Knight,
An example of this point is U.S. Bank National Association v. Knight, in which the bank initially filed "a two-count complaint to foreclose on the note and mortgage and to reestablish said note." 90 So.3d at 825. The bank "alleged it was the owner and holder of the mortgage and note" but "did not attach the note to its initial complaint. [The bank] then filed its first amended complaint, but again, did not attach the subject note." Id. After the trial court denied its motion to dismiss, the property owner answered and affirmatively defended that the bank lacked standing to sue on the note. Id. In response, the bank filed a second amended complaint, this time "attaching a copy of the note at issue" that was "indorsed in blank." Id. The bank "then filed its third amended complaint, which alleged that it `is the legal and equitable owner and holder of the note and mortgage and has the right to enforce the loan documents.'" Id. The bank attached two assignments to the third amended complaint. The property owner again moved to dismiss; the bank responded by saying its legal standing was not based "on the assignments, but rather on an equitable assignment of the note and that said assignments merely memorialized the prior equitable assignment of the note." Id. The trial court ultimately dismissed the bank's third amended complaint "with prejudice because the exhibits attached to the complaint" operated to negate
The point of our discussion of the twists and turns of the amended complaints in Knight is that a first complaint in a foreclosure action is often a starting point — not an ending point. A number of amendments may be necessary, which often serves to fine tune the scope of the factual allegations. Trial courts should not speculate on whether the bank might ultimately be able to prove its case on the merits or to adjudicate factual disputes prematurely. Lippi, 78 So.3d at 84 (trial court may not "rely upon depositions, affidavits, or other forms of evidence or speculation as to whether the allegations in the complaint `will ultimately be provable'") (citation omitted). Here, the trial court jumped the gun by failing to allow the bank to amend its initial complaint, and this error requires reversal.
We also note that the trial court engaged in the somewhat unusual step of physically examining the original note filed with the court as part of its decision to dismiss the bank's complaint with prejudice. While a court is permitted to consider the content of an attachment to a challenged complaint, it cannot be said that the type of physical examination conducted here, which resulted in the spontaneous adjudication of disputed facts based on that examination, is permissible. In doing so, the trial court went beyond the boundaries of the limited inquiry that is appropriate at the motion to dismiss stage.
In reaching this conclusion, we make three points. First, the ordinary means by which the authenticity, relevancy, and admissibility of documents is determined is the structured approach laid out in the Florida Evidence Code. This process includes lay testimony as well as expert analysis where evidence is of a technical nature. See §§ 90.701-.702, Fla. Stat. And it generally becomes a question for the fact finder to make the determination of whose evidence to believe.
Here, this entire process was by-passed. At the hearing on the motion to dismiss, the trial court — albeit at the urging of the Bohatkas' attorney — decided it would determine whether the original note had any physical indicia that it may have had an attachment, such as the allonge, affixed in the past. It perhaps was human nature to do so. Whatever can be said of the inspection, however, it was not the court's job to do; it was certainly not proper to adjudicate with finality the viability of the bank's initial complaint in foreclosure on the basis of this spontaneous judicial examination. The conclusion that no allonge could have existed and been "affixed before filing" of the bank's complaint was a misstep that is inconsistent with due process and contributed to the erroneous dismissal order.
Second, the ways to allege standing to foreclose on a note are many and often very complex,
In this regard, recent Florida foreclosure cases make clear that amendment generally should be permitted (within reason) to establish the bank's standing. For instance, in Isaac v. Deutsche Bank National Trust Company, the Fourth District upheld the grant of summary judgment to a bank which established its standing based on documentation similar to that at issue in this case. 74 So.3d at 495-96. The property owners claimed the bank "failed to provide sufficient documentation reflecting how it obtained ownership of the mortgage and note from the original assignee, an entity called Option One." Id. at 495. The bank filed the "original mortgage, note, and an allonge from Option One, payable to bearer" along with the affidavit. Id. at 495-96. Unlike this case, the allonge in Isaac did not state that the bank was the payee, which made the note "payable to bearer" Id. at 496; see § 673.1091(2), Fla. Stat. ("If an instrument is payable to bearer, it may be negotiated by transfer of possession alone."). Because the property owners were unable to rebut any of the documentary evidence of the bank's standing to foreclose, summary judgment for the bank was affirmed.
We note that the allure of the allonge hung over the hearing on the Bohatkas' motion. That the original had not yet arrived, and only a copy was available, was a point of drama; yet it mattered not. What mattered was that a purported addendum to the note, the allonge, existed that had not yet been attached to the initial complaint; on the face of this allonge, the bank was specifically named as the payee. Given this posture of the case, dismissal of the initial complaint without prejudice, or perhaps just an order requiring a more definite statement of the bank's standing, was warranted to flesh out whether the foreclosure action would move forward based on the alleged endorsement of the note to the bank as reflected in the proferred allonge.
Finally, we do not suggest that it was improper for the court and the parties to address in a critical way how the bank was to establish its basis for standing to foreclose on the note at issue. Given the potential for fraud in post-dating addenda and other purported documents of transfer, it is laudable for courts and others to be sensitive to potential abuses. On the record before us, however, we see nothing — particularly at this initial stage of this litigation — that would justify the trial court's reaction in commandeering the originals of the mortgage and the allonge for delivery to the Office of the Attorney General for its review.
A motion to dismiss is not a substitute for a summary judgment hearing or a trial. Dykema v. Godfrey,
BENTON, C.J., and VAN NORTWICK, J., concur.
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