As the purported of the note and mortgage, RCS was not the party “servicer” to whom the debt was owed. 24 C.F.R. §3500.2(b) (defining the act of See e.g. under the Real Estate Settlement Procedures Act as any “servicing” “receiving scheduled periodic payments from a borrower pursuant to the terms of any mortgage loan…and making the payments to the owner of the loan or other third parties…pursuant to the terms of the mortgage servicing loan documents or servicing contract.”) (Bold emphasis added). Rather, RCS was the agent for the party it was the loan on behalf of and could only foreclose “servicing” the mortgage if its principal granted it authority to act. The question then turns to what burden of proof RCS was required to present at trial in order to establish this. This issue was recently addressed by the Fourth District Court of Appeal in a slightly different context. In Elston/Leetsdale, LLC v. CWCapital Asset 37 Fla. L. Weekly D785b (Fla. 4th DCA April 4, 2012), CW, a Management, LLC, servicer of a note and mortgage executed by Elston, sued Elston for foreclosure even though the mortgage and note were owned by a trust.” CW Id. “securitized then moved for, and was granted, an order to show cause why full payments should not be made during the pendency of the action. Elston thereafter appealed, Id. arguing that the court erred by ordering it to make payments to CW because “trial CW failed to properly allege standing.” Id.
As the purported “servicer” of the note and mortgage, RCS was not the party to whom the debt was owed. See e.g. 24 C.F.R. §3500.2(b) (defining the act of “servicing” under the Real Estate Settlement Procedures Act as “receiving any scheduled periodic payments from a borrower pursuant to the terms of any mortgage loan…and making the payments to the owner of the loan or other third parties…pursuant to the terms of the mortgage servicing loan documents or servicing contract.”) (Bold emphasis added). Rather, RCS was the agent for the party it was “servicing” the loan on behalf of and could only foreclose the mortgage if its principal granted it authority to act. The question then turns to what burden of proof RCS was required to present at trial in order to establish this. This issue was recently addressed by the Fourth District Court of Appeal in a slightly different context. In Elston/Leetsdale, LLC v. CWCapital Asset Management, LLC, 37 Fla. L. Weekly D785b (Fla. 4th DCA April 4, 2012), CW, a servicer of a note and mortgage executed by Elston, sued Elston for foreclosure even though the mortgage and note were owned by a “securitized trust.” Id. CW then moved for, and was granted, an order to show cause why full payments should not be made during the pendency of the action. Id. Elston thereafter appealed, arguing that the “trial court erred by ordering it to make payments to CW because CW failed to properly allege standing.” Id.
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