FLORIDA APPELLATE COURT REVERSES DISMISSAL OF FORECLOSURE CASE & ORDERS NEW TRIAL

Florida’s Fourth DCA recently reversed an order involuntarily dismissing Bank of New York Mellon’s (“BNY Mellon” or “Bank”) foreclosure finding the trial court erred when it concluded BNY Mellon lacked standing to bring suit. Bank of N.Y. Mellon v. Cohen, No. 4D2023-2793, 2025 Fla. App. LEXIS 4250 (Fla. 4th DCA June 4, 2025).

In 2007 BNY Mellon filed a two-count complaint seeking to foreclose its lien and re-establish the lost note. Having later located the original note, BNY Mellon dropped the lost note count and the matter proceeded to a bench trial. At trial the bank proffered the original note which contained a blank endorsement.

Since the blank endorsement was not dated, BNY Mellon relied on witness testimony and a pooling and servicing (P&S) agreement to prove that it acquired the loan in 2005, roughly two years prior to filing the foreclosure action. The mortgage loan schedule (“MLS”), attached as an exhibit to the P&S Agreement, identified Cohen’s (the borrower) loan as being part of the 2005 acquisition and the Bank’s witness identified the loan in the MLS.

The borrower, relying on Kumar v. US Bank, N.A., 225 So. 3d 888 (Fla. 5th DCA 2017), moved for an involuntary dismissal arguing that a pooling and servicing agreement was insufficient to prove standing without physical possession of the note. The trial court agreed with the borrower’s interpretation of Kumar and granted dismissal. On rehearing, BNY Mellon argued that Kumar was distinguishable because the bank’s witness in Kumar could not identify the subject loan in the MLS. The trial court denied rehearing and BNY Mellon appealed.

On appeal the 4th DCA agreed that Kumar was distinguishable because the witness in that case could not identify the subject loan in the MLS whereas BNY Mellon’s witness was able to identify Cohen’s loan. The Court also clarified that a party could rely on a P&S agreement as corroborating evidence of a party’s standing, but in other cases where a P&S agreement was relied upon there was also other evidence presented, such as witness testimony based on business records.

The Court also pointed out, contrary to the borrower’s argument, that the Bank was not required to prove that it was both the owner and holder of Cohen’s loan. Proof of ownership or holder status was sufficient to confer standing on BNY Mellon. The DCA found BNY Mellon’s evidence of standing to be sufficient and reversed the involuntary dismissal. On remand, the Court ordered a new trial since the case was dismissed below before the borrower presented her case-in-chief.

Although there are a plethora of cases addressing the issue of standing, the courts’ precedential findings are sometimes misunderstood or misinterpreted due to the nuances of each case. Cases that clarify the existing precedent are always helpful to guide trial courts and to avoid unnecessary litigation over legal questions that have already been answered. This is a good result from the Fourth DCA.

1 Cohen, at *2. All future references to this case are to this citation until indicated otherwise.

2 Cohen, at *3. All future references to this case are to this citation until indicated otherwise.

3 Cohen, at *3-4. All future references to this case are to this citation until indicated otherwise.

4 Cohen, at *4. All future references to this case are to this citation until indicated otherwise.

5 Cohen, at *6. All future references to this case are to this citation until indicated otherwise.

6 Cohen, at *7-8. All future references to this case are to this citation until indicated otherwise.

7 Cohen, at *8.

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