IN THE FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

C. DAVID PEACOCK and BETTY J.

PEACOCK, et. al.,
Appellants

CASE NO.: 1D17-467

L.T. CASE NO.: 2014-CA-741

vs.

U.S. BANK NATIONAL ASSOCIATION

AS TRUSTEE FOR MASTR ADJUSTABLE RATE
MORTGAGES TRUST 2007-2 MORTGAGE
PASS-THROUGH CERTIFICATES SERIES
2007-2,
Appellee

INITIAL BRIEF OF APPELLANT

Appeal from a Final Order of the Circuit Court of Walton County, Florida

/s/ April Carrie Charney /s/ Daniel C. ORourke (electronic signature)

APRIL CARRIE CHARNEY Daniel C. ORourke, Esq. /FBN #49034
ATTORNEY AT LAW The Critzer Law Firm, P.A.
Florida Bar No. 310425 12889 US Highway 98 W Suite 110A
P. O. Box 576 Miramar Beach, FL 32550-3241
Venice, Florida 34284-0576 Telephone: 850-622-0050
email: aprilcarriecharney@gmail.co Facsimile: 888-866-6820
Dan@critzerlaw.com
Attorney for Appellants/Defendants:
lisa@critzerlaw.com
C. David & Betty J. Peacock
Attorneys for Appellants/Defendants:
C. David & Betty J. Peacock
 TABLE OF CONTENTS

TABLE OF CONTENTS....i

TABLE OF CASES AND AUTHORITIES.......................................................ii

TABLE OF STATUTES AND RULES..................................v

STATEMENT OF CASE AND FACTS............................................................1

SUMMARY OF ARGUMENT..........................................................................5

STANDARD OF REVIEW................................................................................6

ARGUMENT. 7

1. It was reversible error, an abuse of discretion and a departure from the

essential requirement of the law for the trial court to enter a foreclosure
judgment based on conflicting, disputed and incomplete evidence on the
material issue of whether Appellee was a holder of the Note when the
action was filed.7
2. The trial court acted contrary to law, abused its discretion and
committed reversible error by denying Appellants their right to discovery
of documents relevant to a determination of whether the blank
indorsement on the promissory note was valid and whether Appellee was
the holder of the Note entitled to foreclose the related mortgage when this
action was filed 11
3. The trial court acted contrary to law, abused its discretion and committed
reversible error by denying Appellants request for judicial notice of

i
 records of the United States Office of the Comptroller of the Currency
and of the Federal Reserve Board that provided essential facts relevant
to a determination of whether the blank indorsement on the promissory
note was valid and whether Appellee was the holder of the Note entitled
to foreclose the related mortgage at the time this action was filed..20

CONCLUSION................................................................................................ 22

CERTIFICATE OF SERVICE......................................................................... 24

CERTIFICATE OF FONT COMPLIANCE..................................................... 24

TABLE OF CASES AND AUTHORITIES

Amente v. Newman, 653 So.2d 1030, 1032 (Fla.1995)..19

Armstrong v. Harris, 773 So.2d 7 (Fla. 2000)....6

Bennett v. Deutsche Bank Nat. Trust Co., 124 So. 3d 320 (Fla. 4th DCA
2013)..14

Bouskila v. M & I Bank, Case No. 1D10-2127 (Fla. 1st DCA 2011)13

Brandauer v. Publix Super Markets, Inc., 657 So.2d 932 (Fla. 2d DCA
1995).12

CAC- Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434 (Fla. 3d
DCA 1994)...14

Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553 (Fla. 1st D.C.A. 2006).6

Canakaris v. Canakaris, 382 So.2d 1197 (Fla., 1980).7

ii
Carpenter v. State, 785 So.2d 1182, 1201 (Fla., 2001)7

Castaneda v. Redlands Christian Migrant Ass'n Inc., 884 So.2d 1087, 1093
(Fla. App., 2004)..7

Commercial Bank of Kendall v. Herman, 322 So.2d 564 (Fla. 3d DCA

1975)12

DAngelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)..6

Deltona Corporation v. Bailey, 336 So.2d 1163, 1169 (Fla.1976).....19

Eagles Master Assn Inc. v. Bank of Am., N.A., 40 Fla. L. Weekly

D1510 at 2 (Fla. 2d DCA June 26, 2015)...23

Ederer v. Fisher, 183 So. 2d 39, (Fla 2d DCA 1965)14

First Southern Baptist Church of Mandarin Florida, Inc. v. the First

National Bank of Amarillo, 610 So.2d 452 (Fla. 1st DCA 1992)..12

Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310-311 (Fla. 2d DCA
2013)...10,23

Gee v. U.S. Bank Nat. Ass'n, 72 So. 3d 211, 214 (Fla. 5th DCA 2011)....8

Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1st D.C.A. 2004)...7

Jones v. First Nat'l Bank in Fort Lauderdale, 226 So.2d 834, 835
(Fla. 4th Dist.Ct.App.1969)..8,13

Jones v. Seaboard C.L.R. Co., 297 So. 2d 861, 863 (Fla. DCA 2nd 1974).....12

Kiefert v. Nationstar Mortg.LLC, 153 So. 3d 351, 353 (Fla. 1st DCA
2014).23

Klonis v. Dep't of Revenue, 766 So.2d 1186 (Fla. 1st D.C.A. 2000).....7

iii
Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178 (Fla. 3d DCA 1985)...8,11

Lloyd v. Bank of New York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015)..7

Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011)..8

McCarty v. Myers, (Fla. 1st DCA 2013)......8

McDonalds Rests. of Fla., Inc. v. Doe, 87 So. 3d 791, 793 (Fla. 2d DCA
2012)...11

Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc, 743 So.2d
627 (Fla. 1st D.C.A. 1999)...7

Murray v. HSBC Bank, 40 Fla. L. Weekly D239 (Fla. 4th DCA Jan. 21,
2015)....9

Nedeau v. Gallagher, 851 So.2d 214, 216 (Fla. 1st DCA 2003)11

Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610-
611 (Fla. 4th DCA 1975)....19

Powers v. HSBC Bank, N.A., 2D1448572016 (Fla. 2d DCA 2016).,,9

Reinish v. Clark, 765 So.2d 197 (Fla. 1st DCA 2000).7

Rojas v. Ryder Truck Rental, Inc., 641 So.2d 855, 857 (Fla.1994)18

Russell v. Aurora Loan Services, LLC, 164 So. 3d 639, 642 (Fla. 2d DCA
2015).....7

Singer v. Star, 510 So.2d 637 (Fla. 4th DCA 1987)...12

Smith v. Southern Baptist Hospital, 564 So.2d 1115, 1118 (Fla. 1st DCA
1990)...19

Societe Euro - Swisse v. Citizens & Southern International Bank, 394 So.
iv
2d 533 (Fla. 3d DCA 1981)..12

Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2nd DCA 2010)..13

Wells Fargo Bank, N.A. v. Bohatka, 112 So. 3d 596 (1st DCA, 2015)..9

Wells Fargo Bank, N.A. v. Carssow-Franklin (In re Carssow-Franklin)

2016 U.S. Dist. LEXIS 136151 (U.S. D. Ct. SDNY 2016)..14,15,16,17,18

Weyant v. Rawlings, 389 So. 2d 710, 711 (Fla. DCA 2nd 1980).12

Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla. 4th DCA
1975)..8

TABLE OF STATUTES, RESTATEMENTS AND RULES

Florida Statutes 90.202...21, 22

Florida Statute 90.202(5)..21

Florida Statutes 90.203.22

F.S. 671.201(21)(a)....9

Florida Statute 673.2031..22

UCC 3.308(a)......16, 17

UCC 1.20616

Florida Rule of Civil Procedure 1.280 ...19

Florida Rule of Civil Procedure 1.280(b)(1) .....12,20

Restatement (Second) of Trusts 164,186 (1959)..9

v
 STATEMENT OF THE CASE AND THE FACTS

Appellants, C. David Peacock and Betty J. Peacock (the Peacocks), appeal

a Final Judgment of Foreclosure entered after trial on January 6, 2017 by the First

Judicial Circuit Court in and for Walton County, Florida in favor of the Appellee,

U.S. Bank National Association, as Trustee for Mastr Adjustable Rate Mortgage

Trust 2007-2. (R 1358 - 1361)

Appellants timely filed a notice of appeal of the Final Judgment on February

2, 2017. (R 1362 1382) The notice of appeal includes the following orders that

are the subject of this brief:

a. the November 18, 2016 Order Denying Appellants September

18/19, 2016 Request for Judicial Notice of Federal Reserve
System Board of Governors Order Approving the Acquisition of a
Savings Association And Other Nonbanking Activities and
denying the April 23, 2009 Correspondence From Office of the
Comptroller of the Currency, Administrator of National Banks,
Conditional Approval #2009 without prejudice to renewal at trial
upon establishment of relevance of the noted documents. (R 1356 -
1357);
b. the November 2, 2016 Order on Plaintiffs Objection to
Appellants Notice of Taking Deposition Duces Tecum and
Motion for Protective Order (R 1327 1328);
c. the November 2, 2016 Order on Non-Party Wells Fargo Bank,
N.A.s Motion for Protective Order to Quash Subpoena Duces
Tecum (R 1336 1337);
1
 d. the October 25, 2016 Order on Plaintiffs Objection to Appellants
Notice of Taking Deposition Duces Tecum and Motion for
Protective Order (R 1329 1333), and
e. the September 22, 2016 Order on Non-Party, Bank of America,
N.A.s Motion for Protective Order and Objections to Subpoena
Duces Tecum. (R 459 461)
On December 29, 2014, U.S. Bank, as trustee for Mastr Adjustable Rate

Mortgage Trust 2007-2, filed a Verified Mortgage Foreclosure Complaint seeking

to foreclose the Peacocks residential mortgage. A copy of the Peacock Note,

originally payable to Carolina First Bank bearing a special indorsement to

Countrywide Bank, N.A. from Carolina First Bank; a special indorsement from

Countrywide Bank, N.A. to Countrywide Home Loans, Inc.; and, a purported

blank indorsement from Countrywide Home Loans, Inc. was attached to the

Complaint. (R 18 51)

In the Complaint, U.S. Bank alleges that the Appellee was a trust and that

the trust was the holder of the Peacock Note and entitled to foreclose the related

Peacock Mortgage. Appellants timely filed an answer to the complaint which

answer included an affirmative defense denying that Appellee was the holder of

the Peacock Note at the commencement of the action, denying that Appellee was

entitled to foreclose the Peacock Mortgage and asserting that Appellee lacked

standing to foreclose when the complaint was filed because the Note was not

endorsed in blank and was not transferred to the possession of the Appellee by
2
February , 2007, the date specified for the transfer of promissory notes, in the

Appellees trust instrument, a Pooling and Servicing Agreement (PSA). (R 60

91)

Appellants timely filed a request for judicial notice of the Appellees PSA

which request was granted by the trial court on June 16, 2016. A copy of the PSA

was attached to Appellants March 16, 2016 notice of filing and was also

introduced by Appellee at trial and admitted into evidence. (R 316 319, Sup R

1397 - 1546). Article 2 of the PSA requires that promissory notes have to be

delivered to the trustee for Appellee endorsed in blank (or otherwise duly

endorsed) together with a duly executed assignment of the Mortgage by the

closing date of the trust which is identified in the PSA as February 27, 2007.

Appellants also timely filed a request for judicial notice of a Federal Reserve

record published on the Federal Reserve website and of an Office of the

Comptroller of the Currency (OCC) Order. (See, Appellants Second Motion to

Supplement Record on Appeal & attached exhibits, to wit: Defendants Notice of

Filing Federal Reserve System Board of Governors Order Approving the

Acquisition of a Savings Association and Other Nonbanking Activities & Request

for Judicial Notice, and Federal Reserve System Board of Governors Order

Approving the Acquisition of a Savings Association and Other Nonbanking

Activities filed with this Court contemporaneously herewith) The request was

3
filed by Appellants to secure admission of records of the United States containing

facts supporting their challenge to the validity of the blank indorsement on the

Note and the lack of a transfer to Appellee before the trusts February 27, 2007

closing date. The Federal Reserve record and the OCC order establish

Countrywide Bank, N.A., was not acquired by Bank of America, N.A. until 2008,

after the Appellees February 27, 2007 closing date. This date of acquisition is

material to the issue of whether the blank indorsement was placed on the Peacock

Note before the 2007 closing date of the trust. Appellants sought to prove through

party and nonparty discovery which discovery was also improperly denied by

order of the trial court that the blank indorsement was placed on the Note by

Laurie Meder, an employee of a Bank of America, N. A. subsidiary, after the 2008

acquisition of Countrywide Bank, N.A. by Bank of America, N.A. (R 226 228,

442 461, 506 1326)

At trial, Appellee did not introduce any evidence the blank indorsement was

placed on the Note by a holder in possession, nor that it was endorsed before the

February 27, 2007 closing date of the Trust. Appellees only trial witness, a

Nationstar Mortgage servicing employee, testified Nationstar obtained the original

Peacock Note from a prior servicer. No assignment of mortgage was ever

introduced into evidence.

Before trial, Appellants timely sought to discover documents exclusively in

4
the possession of Bank of America, N.A. through service of a subpoena duces

tecum for deposition, in order to identify the specific date when the blank

indorsement was placed on the Note. Appellants also served a subpoena duces

tecum for deposition on Wells Fargo Bank, the custodian named in the PSA,

seeking discovery of the initial and final certifications issued by the trustee

pursuant to the PSA. Said discovery would establish whether or not as required

by the PSA the Peacock Note was endorsed and Appellee possessed the requisite

assignment of mortgage, all by the closing date; and, further, whether the mortgage

loan schedule required by the PSA included the Peacock mortgage loan with 40

specific items of information. The trial court quashed Appellants subpoenas

duces tecum for deposition served on Bank of America, N.A., and Wells Fargo

Bank, and granted the Banks and the Appellees motions for protective order

preventing this discovery.

The court granted judgment in Appellees favor on January 6, 2017 which is

now subject to review by this Court.

SUMMARY OF ARGUMENT

The trial court abused its discretion and acted contrary to Florida law

committing reversible error by granting a foreclosure based on conflicting,

disputed and incomplete evidence which failed to establish Appellee was the

holder of the Note when this action was filed.

5
 The trial court acted contrary to law and abused its discretion thereby

committing reversible error by denying Appellants, their right to discovery of

documents and evidence relevant to a determination of whether the blank

indorsement on the promissory note was valid and whether Appellee was the

holder of the Note entitled to foreclose the related mortgage at the time this action

was filed.

The trial court acted contrary to law and abused its discretion thereby

committing reversible error by denying Appellants, their right to judicial notice of

records of the United States Office of the Comptroller of the Currency and of the

Federal Reserve Board which contained evidence and facts relevant to a

determination of whether the blank indorsement on the promissory note was valid

and whether Appellee was the holder of the Note entitled to foreclose the related

mortgage at the time this action was filed.

STANDARD OF REVIEW

The Final Judgment of Foreclosure and the orders rendered by the trial court

which quashed Appellants discovery efforts, and refused to take notice of Federal

Reserve and OCC records, are contrary to law and constitute an abuse of judicial

discretion and reversible error. The standard of review of pure questions of law is

de novo. DAngelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003), Armstrong v.

Harris, 773 So.2d 7 (Fla. 2000), Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553

6
(Fla. 1st D.C.A. 2006), Mgmt. Computer Controls, Inc. v. Charles Perry Constr.,

Inc, 743 So.2d 627 (Fla. 1st D.C.A. 1999), Jacobsen v. Ross Stores, 882 So.2d 431

(Fla. 1st D.C.A. 2004), Klonis v. Dep't of Revenue, 766 So.2d 1186 (Fla. 1st

D.C.A. 2000) (Review of a pure question of law is de novo.) Questions of law are

subject to a de novo standard of appellate review. Reinish v. Clark, 765 So.2d 197

(Fla. 1st DCA 2000).

The application of a rule of law is also subject to de novo review. See,

Castaneda v. Redlands Christian Migrant Ass'n Inc., 884 So.2d 1087, 1093 (Fla.

App., 2004), Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), and Carpenter

v. State, 785 So.2d 1182, 1201 (Fla. 2001)

Argument No. 1
It was reversible error, an abuse of discretion and a departure from the essential
requirements of the law for the trial court to enter a foreclosure judgment based on
conflicting, disputed and incomplete evidence on the material issue of whether
Appellee was a holder of the Note when the action was filed.

A party seeking foreclosure must demonstrate it has standing to foreclose.

Lloyd v. Bank of New York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015) A plaintiff

alleging standing as a holder of a negotiable note must prove it holds the note when

the foreclosure is filed. Russell v. Aurora Loan Services, LLC, 164 So. 3d 639, 642

(Fla. 2d DCA 2015) This principle of law and the obligation to produce and

present evidence of standing to foreclose is well established. Id

7
 The party seeking foreclosure must present evidence it owns and holds the

note and mortgage to establish standing to...foreclose. Mazine v. M & I Bank, 67

So. 3d 1129 (Fla. 1st DCA 2011); see, also, Gee v. U.S. Bank Nat. Ass'n, 72 So. 3d

211, 214 (Fla. 5th DCA 2011); Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178

(Fla. 3d DCA 1985) (a real party in interestis the person in whom rests, by

substantive law, the claim sought to be enforced); Your Construction Center, Inc.

v. Gross, 316 So. 2d 596 (Fla. 4th DCA1975) (Defendants in foreclosure actions

may dispute the Plaintiffs claim that it is the owner and holder of the note and

mortgage and obtain adjudication as to the ownership); McCarty v. Myers, (Fla.

1st DCA 2013) (Standing presents a threshold inquiry).

Appellants, as allowed by Florida law, consistently disputed Appellees

claim that is was the holder of the Note or the owner of the mortgage, and they are

entitled to an adjudication of those issues of fact. Your Construction Center, Inc.

v. Gross, Id.

Under Florida law, because Appellee is a trust, it is the PSA, which controls

and sets forth all the rights, powers, obligations, and duties of Appellee. The PSA

defines when and how the Appellee can become a holder of a promissory note or

the owner of a mortgage. Jones v. First Nat'l Bank in Fort Lauderdale, 226 So.2d

834, 835 (Fla. 4th Dist.Ct.App.1969) (The duties, powers and liabilities

oftrustees are ordinarily fixed by the terms of the trust agreementthe trust

8
itselfconstitutes the charter of the trustees powers and duties. From the trust, the

trustee derives the rule of his conduct, the extent and limit of his authority, the

measure of his obligation). A trustee of a trust only has authority to exercise the

powers as (a) are conferred upon him in specific words by the terms of the trust,

or (b) are necessary or appropriate to carry out the purposes of the trust and are not

forbidden by the terms of the trust." Restatement (Second) of Trusts 164,186

(1959). See, also, Murray v. HSBC Bank, 40 Fla. L. Weekly D239 (Fla. 4th DCA

Jan. 21, 2015) and Wells Fargo Bank, N.A. v. Bohatka, 112 So. 3d 596 (1st DCA,

2015).

Evidence establishing: the Peacock Note was transferred into Trust by the

closing date; and, the Peacock mortgage loan is listed in the pooling and servicing

agreement is required for Appellee to establish it had standing when it filed its

foreclosure complaint. See, Powers v. HSBC Bank, N.A., 2D1448572016 (Fla. 2d

DCA 2016). As in Powers, U.S. Bank filed this foreclosure in its capacity as

trustee under a Pooling and Servicing Agreement which U.S. Bank entered into

evidence at trial. The Appellees only witness did not testify as to whether, or on

what date, the Peacock Note and Mortgage were transferred to the Appellee Trust,

and there is no reference to the Peacock Note or mortgage in the PSA.

In its complaint, Appellee claims to be the holder of the Note. Under F.S.

671.201(21)(a) and the PSA, Appellee can only be the holder of the Peacock

9
Note, if the Note bears: a special indorsement in its favor; or, a blank indorsement

showing it was transferred to the Trust together with an assignment of mortgage by

the February 27, 2007 closing date. Appellee did not present any evidence at trial

that it was the holder of the note by the closing date, or that it was the holder of the

Note at the time it filed the complaint, or at the time of trial. Focht v. Wells Fargo

Bank, N.A., 124 So. 3d 308, 310-311 (Fla. 2d DCA 2013) (in order to establish

standing, the bank was required to submit evidence it possessed the original note

with the blank indorsement at the time it filed the complaint).

Article 2.01 of the PSA in this case requires, in order for the Peacock

Note to be an asset of the trust, the original Note endorsed in blank had to be

transferred to the trust together with a duly executed assignment of the Mortgage

by the closing date of the trust. Appellee cannot be an Article 3 holder under the

PSA until there is a transfer of the Note and an assignment of the mortgage as

required by the PSA. The PSA defines Mortgage Note as [t]he original

executed note or other evidence of the indebtedness of a Mortgagor under a

Mortgage Loan.

Article 2.01 of the PSA limits by content and timing how and

when promissory notes can be transferred into the trust. Article 2 of the PSA

specifies: the Depositor has delivered or caused to be delivered to the Custodian...

with respect to each Mortgage Loan... the original Mortgage Note endorsed by

10
manual or facsimile signature in blank, together with a duly executed

assignment of the Mortgage. sufficient to effect assignment of and transfer to the

assignee thereof by the closing date of the Trust. Additionally, Article 2.02 of

the PSA, requires the Custodian execute and deliver to the Trustee, an Initial

Certification at the closing date of the Trust, and a Final Certification within ninety

(90) days of the closing date, listing all nonconforming conveyance documents.

The record in this case is devoid of any evidence to support the trial courts

finding that Appellee was the holder of the Peacock Note under the PSA, or that

Appellee was entitled to enforce the Note and foreclose the related mortgage when

the complaint was filed or at trial. The lack of evidence renders the trial courts

judgment in this case contrary to law and an abuse of judicial discretion. See,

Nedeau v. Gallagher, 851 So.2d 214, 216 (Fla. 1st DCA 2003); and, Kumar Corp.

v. Nopal Lines, Ltd., 462 So.2d 1178, 1182-83 (Fla. 3rd DCA 1985).

Argument No. 2

The trial court acted contrary to law, abused its discretion, and committed
reversible error by denying Appellants their right to discovery of documents
relevant to a determination of whether the blank indorsement on the promissory
note was valid and whether Appellee was the holder of the Note entitled to
foreclose the related mortgage when this action was filed.

Relevance is the polestar in a discovery request. McDonalds Rests. of

Fla., Inc. v. Doe, 87 So. 3d 791, 793 (Fla. 2d DCA 2012). A party to an action

may obtain discovery regarding any matter, not privileged, that is relevant to the
11
subject matter of the pending action, whether it relates to the claim or defense of

the party seeking discovery or the claim or defense of any other party. Florida

Rules of Civil Procedure, 1.280(b)(1). In Florida, the rules of discovery are

liberally construed so the overall purpose of discovery is not compromised.

Weyant v. Rawlings, 389 So. 2d 710, 711 (Fla. DCA 2nd 1980); and, Jones v.

Seaboard C.L.R. Co., 297 So. 2d 861, 863 (Fla. DCA 2nd 1974).

In this case, the trial court erred as a matter of law and abused its discretion

by denying Appellants the opportunity to complete their discovery on the disputed

blank indorsement appearing on the Peacock Note. See, generally, Brandauer v.

Publix Super Markets, Inc., 657 So.2d 932 (Fla. 2d DCA 1995); Singer v. Star, 510

So.2d 637 (Fla. 4th DCA 1987); Societe Euro - Swisse v. Citizens & Southern

International Bank, 394 So.2d 533 (Fla. 3d DCA 1981); and, Commercial Bank of

Kendall v. Herman, 322 So.2d 564 (Fla. 3d DCA 1975).

Appellants were entitled to discovery to learn when the blank indorsement

was placed on the Peacock Note, by Bank of America, N.A.s subsidiary,

Recontrust. Appellants established a proper predicate for the discovery leading to

admissible evidence, and there was no lawful basis or good cause for the trial court

to deny the discovery about when the indorsement was placed on the Note. First

Southern Baptist Church of Mandarin Florida, Inc. v. First National Bank of

Amarillo, 610 So.2d 452 (Fla. 1st DCA 1992)

12
 Additionally, the discovery Appellants sought from Wells Fargo Bank, the

custodian listed in the PSA, was also a proper inquiry to discover whether the

Peacock Note endorsed in blank, was transferred together with an assignment

of the mortgage in conformity with the PSA by the 2007 closing date. Jones v.

First National Bank in Fort Lauderdale, supra.

The specific documents Appellants sought in deposition from custodian,

Wells Fargo Bank, pursuant to a subpoena duces tecum included the Mortgage

Loan Schedule defined in the PSA as the list of mortgage loans transferred to the

trust, and the initial and final certifications issued by Wells Fargo, as the custodian.

The mortgage loan schedule, and the certifications from the custodian of the Trust,

are essential evidence to a determination whether Appellee was the holder of the

Peacock Note endorsed in blank and the owner of the Peacock mortgage when it

filed its complaint. See, Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2nd

DCA 2010); and, Bouskila v. M & I Bank, Case No. 1D10-2127 (Fla. 1st DCA

2011)

As a trustee, Appellee has to do more to establish its standing to foreclose

than just attach a blank endorsed copy of a promissory note to its complaint.

Reference to the PSA, the mortgage loan schedule listing the Peacock Note, and

the custodian certifications, are essential evidence required for Appellee to prove it

held the Note when the action was filed. The redacted schedule of loans presented

13
by Appellee at trial was hearsay and not the schedule of loans defined in the PSA.

The redacted document does not contain the forty (40) separate items of loan data

which the PSA requires to be listed in the schedule.

Appellants properly put in issue the question of whether the blank

indorsement was valid or genuine and no presumption applies to establish that the

blank indorsement appearing on the Peacock Note was genuine. Appellee, as the

party seeking to establish its status as the holder of order paper, had to prove the

validity of the blank indorsement on which its status depends. Ederer v. Fisher,

183 So. 2d 39, (Fla 2d DCA 1965)

The trial court denied Appellants the opportunity to discover documents

essential to proving the blank indorsement on the Peacock Note was not placed

until after the trust closed to new assets in 2007. The courts orders denying

Appellants discovery from Bank of America, N.A. and from Wells Fargo Bank

were therefore contrary to law, prejudicial to Appellants, and abuses of discretion.

Bennett v. Deutsche Bank Nat. Trust Co., 124 So. 3d 320 (Fla. 4th DCA 2013);

and, CAC- Ramsay Health Plans, Inc. v. Johnson, 641 So.2d 434 (Fla. 3d DCA

1994).

In Wells Fargo Bank, N.A. v. Carssow-Franklin, 2016 U.S. Dist. LEXIS

136151 (U.S. D. Ct. SDNY 2016) (hereafter, In re Carssow-Franklin), the

Debtor in a Chapter 13 bankruptcy challenged a proof of claim filed by Wells

14
Fargo Bank questioning the validity of the assignment of the lien on the ground

that the assignment pre-dated the notarized signature of the debtor on the note and

the DOT by three days. Debtor also claimed that the blank indorsement on the note

was stamped on the Note after Wells Fargo filed its initial proof of claim in an

attempt to improve the record with respect to Wells Fargos standing to enforce the

Note. After Debtors counsel questioned Wells Fargos standing, Wells Fargo

filed an amended proof of claim, which was the same as the first claim except that

the copy of the Note attached to the claim had a second indorsement (in addition

to the specific indorsement from Mortgage Factory to ABN Amro): a blank

indorsement, signed by Margaret A. Bezy, Vice President, for ABN Amro. In re

Carssow-Franklin, supra.

After discovery and an evidentiary hearing on the issue of Wells Fargos

standing as a holder of the note, the bankruptcy court ruled that Wells Fargo did

not satisfy its burden to show that the blank indorsement on the Note attached to

the amended claim was genuine and entered an Order disallowing and expunging

both claims filed by Wells Fargo. Id. The district court looked to Texas UCC law

to determine whether Wells Fargo was an interested party based on the Texas

choice of law provision in the DOT and found that [u]nder Texas law, in order to

determine that a holder of a note indorsed in blank has standing to enforce the

notethe critical question before thecourt was the authenticity of the blank

15
indorsement on the Note. In re Carssow-Franklin, supra.

The bankruptcy court, finding that the Debtor had provided sufficient

evidence to overcome (and defeat) the Texas UCCs presumption in favor of the

authenticity of indorsementsdetermined that Wells Fargo did not carry its burden

to establish the authenticity of the indorsement. Id. Texas law is the same as the

law in Florida in that it is the holder who is entitled to enforce a note. Holder

also has the same definition under Texas and Florida law (and the UCC more

generally). Indorsements on negotiable instruments are presumed to be authentic

unless in an action seeking to enforce the note, the authenticity and validity of the

indorsement is specifically denied in the pleadings, in which case the burden of

establishing validity is on the person claiming validity. UCC 3.308(a)

The general article, UCC 1.206, provides that a fact is presumed unless

and until evidence is introduced that supports a finding of its nonexistence.

The In re Carsslow-Franklin decision, held: in the context of indorsements,

the bankruptcy court was required to find the blank indorsement to be authentic

unless and until evidence [was] introduced that support[ed] a finding of

inauthenticity and that because the ultimate burden of establishing validity of the

indorsement is on the person claiming validity, if sufficient evidence is introduced

to overcome the presumption, the burden shifts back to the person claiming to be a

holder to establish the validity of the indorsement by a preponderance of the total

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evidence. In re Carssow-Franklin, supra.

In the present case, by refusing to take judicial notice of the Federal Reserve

record and by denying Appellants discovery from Bank of America and from

Wells Fargo Bank, Appellants were prejudiced by the court in their reasonable

efforts to discover and present evidence proving the blank indorsement on the Note

was not valid and not authorized. The showing necessary to overcome the

presumption of authenticity is described in the official comment as some

sufficient showing. UCC 3.308(a), Cmt.

In this case, Appellants presented lawful justification for the court to take

judicial notice of the Federal Reserve Record and for the nonparty discovery that

directly concerned the timing of the placement of the indorsement on the Note and

also the certifications and mortgage loan schedule required by the PSA. The trial

courts orders concerning these matters are contrary to law and abuses of discretion

because the orders effectively denied Appellants a reasonable opportunity to

provide evidence sufficient to support the elimination of the presumption. The

UCC suggests that the required evidentiary showing to overcome the presumption

is similar to that needed to defeat a summary judgment motion which, in Florida,

is the existence of genuine dispute as to material facts. Overcoming the

presumption of validity is not a question of substantial evidence or quantity of

evidence, but rather that of legal sufficiency. Id.

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 Appellants thwarted discovery was not based on speculation or conclusory

allegations, but was based on competent and specific facts, which if proved, would

be the evidence necessary to overcome the blank indorsements presumption of

validity. The court acted contrary to law and abused its discretion by drawing the

inference that the blank indorsement on the Peacock Note was valid, by refusing to

take judicial notice of the Federal Reserve record, by denying Appellants

reasonable discovery and by not affording them the right to shift the burden to

Appellee to prove the that the indorsement was valid.

In the present case, the facts disclosed in the record through the PSA,

combined with Appellants specific affirmative defense that the Appellee lacked

standing and that the blank indorsement was not timely or valid, provided a proper

foundation for judicial notice of the Federal Reserve record and for the discovery

sought by Appellants to proceed. This is especially true because the evidence

regarding the mortgage loan schedule and the timing and placement of the blank

indorsement was exclusively in the control of Appellee, Bank of America and

Wells Fargo Bank. As the In re Carsloww-Franklin district court states, [o]ne

would expect that a large banking and financial services company would have

readily accessible evidence by which it could establish the timing and validity of

the blank indorsement.

Trial courts have broad discretion in controlling discovery and in issuing

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protective orders. Rojas v. Ryder Truck Rental, Inc., 641 So.2d 855, 857

(Fla.1994). But, in this case, the record discloses that Appellants plainly

demonstrated the relevance of the documents sought in discovery and that there

was no showing that the discovery was being deployed as to harass, or for any

other unacceptable purpose. As a result, the trial court abused its broad discretion

by denying the limited discovery at issue, in issuing the orders denying Appellants

discovery of the initial and final certifications, the mortgage loan schedule under

the PSA, and the documents showing when the blank indorsement was placed on

the Note. The orders denying this discovery to Appellants depart from the

essential requirements of law. Full discovery is the rule and parties are entitled to

discover relevant facts so long as those facts might lead to the discovery of

admissible evidence. Amente v. Newman, 653 So.2d 1030, 1032 (Fla.1995).

Discovery should only be curtailed when there has been an affirmative

showing of good cause, which showing was not made in this case. Deltona

Corporation v. Bailey, 336 So.2d 1163, 1169 (Fla.1976); Smith v. Southern Baptist

Hospital, 564 So.2d 1115, 1118 (Fla. 1st DCA 1990); and, Orlando Sports

Stadium, Inc. v. Sentinel Star Co., 316 So.2d 607, 610-611 (Fla. 4th DCA 1975)

The trial court abused its discretion acting contrary to Fla. R. Civ. P. 1.280,

which outlines the allowable scope of discovery. By denying Appellants ability to

conduct this crucial discovery before trial in the way that it did, subject to renewal

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at trial upon the establishment of relevance of the noticed documents, the court

did not follow the law. The discovery Appellants sought from Appellee, and

nonparties, Bank of America, N.A, and Wells Fargo Bank, before trial, was

targeted to elicit facts which were material and directly relevant to their defenses,

to wit: the affirmative defense that the blank indorsement was not valid; that the

Appellee was not a holder of the Note; and, that the Peacock Note and Mortgage

were not assets of Appellee. All of the facts bear on a determination of whether

Appellee lacked standing to foreclose.

The concept of relevance is broader in the discovery context than in the trial

context as is borne out by the language of Fla. R. Civ. P. 1.280(b)(1). Appellants

carefully explained to the court the bases for their requests for this discovery, and it

was incumbent on the trial court to exercise it is broad discretion under the rules to

authorize the requested discovery in such a way which would accommodate the

broad scope of discovery which is supposed to be afforded to litigants in Florida.

The trial court should have allowed the discovery while imposing any needed

safeguards so that Appellants would be able to adequately discover relevant facts

that would have allowed them to present admissible evidence in support of their

defenses and affirmative defenses.

Argument No. 3

The trial court acted contrary to law, abused its discretion and committed

20
reversible error by denying Appellants request for judicial notice of records of the
United States Office of the Comptroller of the Currency and of the Federal Reserve
Board that provided essential facts relevant to a determination of whether the blank
indorsement on the promissory note was valid and whether Appellee was the
holder of the Note entitled to foreclose the related mortgage at the time this action
was filed.

The Federal Reserve record, and the OCC order, like the trustee

certifications and documents showing the date the blank indorsement was placed

on the Note and the mortgage loan schedule, all contain relevant evidence

concerning when and by whom the indorsement was placed on the Peacock Note

and whether the blank indorsement was valid. Florida Statutes, 90.202 provides

authority for the court to take judicial notice of records of executive departments of

the United States, and F.S. 90.202(5) allows that court to take judicial notice of

official actions of the executive departments of the United States.

Under this statute, the trial court was authorized to take judicial notice of the

OCC Order because it is a public document of the United States Treasury; and, of

the Federal Reserve record because it is an order that is a public document issued

and published by the United States Federal Reserve System.

Copies of the OCC Order and the Federal Reserve record were attached to

Appellants requests for judicial notice thereby furnishing the court with sufficient

information to enable it to take judicial notice of the facts contained therein. The

OCC Order and the Federal Reserve record, confirm that Bank of America

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Corporation merged Countrywide Bank, FSB with Bank of America, N.A in 2008;

and, upon the merger, Countrywide Bank, FSB was converted to Countrywide

Bank, N. A., which, in turn, was acquired by Bank of America, N.A.

Under Florida Statutes 90.202 and 90.203, which are part of the Florida

Evidence Code, the trial court was required to take judicial notice of the OCC

Order and the Federal Reserve record. The requests properly informed the court

about the content of the public records of departments of the United States, and

Appellee was given timely written notice of the requests. The Federal Reserve

record and the OCC order attached to Appellants request for judicial notice are

also relevant to the issue of whether the blank indorsement was made by a holder

in possession entitled to the presumption of validity normally afforded blank

indorsements under Florida Statute 673.2031.

The trial court acted contrary to law and abused its discretion causing

prejudice to Appellants by denying their requests and refusing to take notice of

admissible evidence bearing on the timing and validity of the blank indorsement.

The admissibility and evidentiary value of the OCC order and the Federal Reserve

record are not subject to reasonable dispute and no harm or prejudice to Appellee

would have resulted from admission of these records of the United States.

CONCLUSION

There was no evidence presented at trial that the Appellee trust held a blank

22
endorsed note when it filed this action. Appellee failed to present the court with

substantial competent evidence that it was the holder of the note at the time it

filed the foreclosure complaint. Eagles Master Assn Inc. v. Bank of Am., N.A., 40

Fla. L. Weekly D1510, at 2 (Fla. 2d DCA June 26, 2015), citing, Kiefert v.

Nationstar Mortg.LLC, 153 So. 3d 351, 353 (Fla. 1st DCA 2014); and, Focht v.

Wells Fargo Bank., N.A., supra.

The trial court abused its discretion, acted contrary to applicable law and

committed reversible errors by denying Appellants discovery, denying

Appellants requests for judicial notice and by awarding a final summary judgment

of foreclosure to Appellee. The final judgment of foreclosure caused harm to result

to Appellants outside the bounds of Florida law and should be reversed and

vacated.

RESPECTFULLY SUBMITTED,

/s/ April Carrie Charney /s/ Daniel C. ORourke (electronic signature)

APRIL CARRIE CHARNEY Daniel C. ORourke, Esq. /FBN #49034
ATTORNEY AT LAW The Critzer Law Firm, P.A.
Florida Bar No. 310425 12889 US Highway 98 W Suite 110A
P. O. Box 576 Miramar Beach, FL 32550-3241
Venice, Florida 34284-0576 Telephone: 850-622-0050
email: aprilcarriecharney@gmail.co Facsimile: 888-866-6820
Dan@critzerlaw.com
Attorney for Appellants/Defendants:
lisa@critzerlaw.com
C. David & Betty J. Peacock
Attorneys for Appellants/Defendants:
C. David & Betty J. Peacock

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 Certificate of Service

WE HEREBY CERTIFY the foregoing is being e-filed with the Court this
th
12 day of June, 2017; and true and correct copy(ies) thereof being furnished, as
indicated, to:

Vanessa D. Sloat-Rogers, Esq. Nancy M. Wallace, Esq.

Robertson, Anschutz & Schneid, P.L. Akerman LLP
6409 Congress Avenue, Suite 100 Post Office Box 231
Boca Raton, FL 33487 106 E. College Avenue, Suite 1200
mail@rasflaw.com Tallahassee, FL 32301
vrogers@rasflaw.com nancy.wallace@akerman.com
elisa.miller@akerman.com
michele.rowe@akerman.com
Celia C. Falzone, Esq. William P. Heller, Esq.
Akerman LLP Akerman LLP
50 N. Laura St., Suite 3100 Las Olas Centre II, Suite 1600
Jacksonville, FL 32202-3646 350 East Las Olas Centre Boulevard
celia.falzone@akerman.com Ft. Lauderdale, FL 33301
emery.woodward@akerman.com william.heller@akerman.com
lorraine.corsaro@akerman.com

Certificate of Compliance

WE HEREBY CERTIFY this filing complies with the font requirements of

Times New Roman, 14-point.

/s/ April Carrie Charney /s/ Daniel C. ORourke (electronic signature)

APRIL CARRIE CHARNEY Daniel C. ORourke, Esq. /FBN #49034
ATTORNEY AT LAW The Critzer Law Firm, P.A.
Florida Bar No. 310425 12889 US Highway 98 W Suite 110A
P. O. Box 576 Miramar Beach, FL 32550-3241
Venice, Florida 34284-0576 Telephone: 850-622-0050
email: aprilcarriecharney@gmail.co Facsimile: 888-866-6820
Dan@critzerlaw.com
Attorney for Appellants/Defendants:
lisa@critzerlaw.com
C. David & Betty J. Peacock
Attorneys for Appellants/Defendants:
C. David & Betty J. Peacock

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