Archive for February 15th, 2012

Plaintiff as Servicer? I Think Not.

I observed a foreclosure trial today, and one aspect of it in particular really bothered me.  The plaintiff prosecuting the case was not the owner of the Note, but merely the servicer.  Many judges and, of course, plaintiffs’ attorneys, seem to think this is fine, arguing the servicer can foreclose because it’s the “holder” of the Note, even though, by its own admission, it’s not the owner.  In other words, the plaintiff/servicer concedes it does not “own” the Note, i.e. it’s not the plaintiff’s Note, but because it has the Note in its possession, and the Note is indorsed in blank, it can foreclose. 

I’ve thought about this argument a lot, read a lot of case law, and see some fatal problems.  Frankly, I’m frustrated these problems are largely being ignored and hope that everyone starts arguing and adjudicating this issue appropriately.   

First off, taking the plaintiff’s argument to its logical extreme, anyone can steal a Note with a blank indorsement – literally, be a thief – but because he possesses the Note, and the Note is indorsed in blank, he could foreclose simply because he’s the holder.  That sounds insane, but once you accept the argument that the plaintiff need only be the “holder,” and that ownership is irrelevant, that’s what you’re allowing – a thief can foreclose.  Anyone can foreclose.  Come to court with a Note with a blank indorsement, and how you obtained that Note is irrelevant – you can foreclose. 

Respectfully, that’s just not the law.  It can’t be the law.  There’s no way the law can allow or would allow a thief to foreclose.  Undoubtedly, this is why Rule 1.944 requires the plaintiff be the “owner and holder.”  

I can hear the plaintiffs’ attorneys now.  “But many Florida cases say being a holder is sufficient; they don’t have an ownership requirement.”  To a limited extent, I suppose that is true, but read those cases.  For example, Riggs v. Aurora Loan Services, 36 So. 3d 942 (Fla. 4th DCA 2010), talks at length about whether the plaintiff was the holder, and plaintiffs’ lawyers love to cite Riggs for the proposition that being the “holder” is all that matters.  However, the issue of ownership wasn’t a question in Riggs – in that case, the plaintiff showed it was the “owner and holder.”  Respectfully, it is totally misguided to take a case where ownership was not in question and use that case for the proposition that ownership is immaterial.  It may have been immaterial in that case because ownership wasn’t disputed, but that certainly doesn’t mean ownership is immaterial in all cases

Consider, again, my thief example.  Once you accept that a thief cannot foreclose, you necessarily accept that the plaintiff who forecloses must own the Note. 

Again, I can hear the plaintiffs’ lawyers.  “But a servicer can foreclose because the servicer is the holder and has a servicing agreement with the owner, so it’s foreclosing with the consent of the owner of the Note.”   This was the argument being espoused at the trial I observed today – the servicer doesn’t own the Note, but is foreclosing with the consent of the owner. 

This argument may sound unique or complicated, but it’s one the Florida courts have adjudicated for many years in a number of contexts – that of principal and agent.  Here, the plaintiff is saying that it, the servicer, is acting as the agent of the owner, the principal, by prosecuting the foreclosure case.  This is the dynamic we see in thousands of foreclosure cases – the servicer alleges it can prosecute the case for the owner under a theory of agency. 

In my view, this begs the question of when can an agent bind the principal?  Let’s say that again: 

Under what circumstances can an agent bind a principal?

There are zero Florida cases that discuss this concept in the context of foreclosure cases, so let’s look to case law in other contexts. 

In Fla. State Oriental Med. Ass’n v. Slepin, the First District ruled an attorney was not entitled to collect attorneys’ fees incurred representing a corporation because the attorney (the alleged agent) did not have the authority to act on behalf of the corporation (the alleged principal).  971 So. 2d 141 (Fla. 1st DCA 2007).  The attorney said he was acting on the corporation’s behalf, and he purported to act on its behalf, but the First District ruled he wasn’t, in fact, an agent and didn’t have the authority to bind the corporation.  In so ruling, the court explained:

A finding of actual authority would require evidence that a principal acknowledged an agent’s power, that the agent accepted the responsibility of representing the principal, and that the principal retained control over the agent’s actions.

Similarly, the Florida Supreme Court has explained:

Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.

Villazon v. Prudential Health Care Plan, 843 So. 2d 842 (Fla. 2003). 

Let’s read those requirements closely, and break them down, one by one. 

1.  The principal acknowledged the agent’s power. 

2.  The agent accepted the responsibility of representing the principal.

3.  The principal retained control over the agent’s actions. 

In the trial I observed today, the plaintiff/servicer admitted it did not even know who the owner of the Note was.  Think about that for a minute.  The servicer was supposed to be acting on behalf of the owner, with the owner’s consent, but it didn’t even know who the owner was.  On these facts, how on earth could the servicer possibly prove the owner/principal “acknowledged the agent’s power”?  Clearly, it couldn’t, and it didn’t.  The servicer couldn’t even identify the owner, much less prove the owner authorized the servicer’s actions. 

This argument is so simple it’s ridiculous. 

“I have authority to foreclose.” 

“Who gave you authority?”

“I don’t know, but I have authority.” 

I can just see my kids making this argument to me and my wife. 

“I have permission to stay up until 10:00.  That’s my new bedtime.” 

“Who gave you that permission?”

“I don’t know, but it’s allowed.”

These arguments don’t even begin to make sense, but that’s what the servicer was arguing today.  “I don’t know who gave me authority, but I have authority.” 

As I see it, to prove the requisite authority, the servicer must either (a) introduce a servicing agreement into evidence; or (b) provide testimony from the owner as to the servicer’s authority.  Without one of those two things, I just don’t see how the servicer can possibly show the owner of the note authorized the servicer to foreclose.  Do you disagree?  You tell me … without a servicing agreement or testimony from the owner as to the servicer’s authority, how can the servicer prove the owner “acknowledged the servicer’s power”?  Once you conclude there is no such answer, then you necessarily agree that a servicer cannot foreclose without such proof.   

Similarly, in the trial I observed, the plaintiff/servicer failed to show the owner of the Note “retained control over the agent’s actions.”  After all, how could the servicer possibly show the owner of the Note “retained control over the servicer’s actions” when the servicer couldn’t even identify the owner?   Clearly, the servicer was acting as its own boss here, answering to nobody. 

I realize that some of the arguments being espoused by servicers in foreclosure cases seem unique, and there appears to be an absence of case law setting forth these issues.  However, once you realize a servicer purports to act on behalf of the owner, and is hence just another fancy word for an agent, it should become clear that basic principles of law regarding agents and principals must apply, as quoted above.  This requires proof in foreclosure cases that, many times, is simply not forthcoming.

Mark Stopa

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