ELSTON/LEETSDALE, LLC, v. CWCAPITAL ASSET MANAGEMENT LLC, solely in its capacity as Special Servicer on behalf of U.S. Bank, N.A., Successor to State Street Bank and Trust Company, as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., MortgagePass–Through Certificates, Series 2001–C1BC1. — So.3d —-, 2012 WL 1108531 Fla.App. 4 Dist.,2012. April 4, 2012.
Elston executed a note and mortgage in favor of First Union National Bank, which subsequently assigned them to to Morgan Guaranty Trust Company of New York, which assigned them to State Street Bank and Trust Company, as Trustee for J.P. Morgan Chase Commercial Mortgage Securities Corp., Series 2001–C1BC1 (the Trust).
The caption of the verified complaint states that the underlying action is brought by CW “solely in its capacity as special servicer on behalf of U.S. Bank, N.A.” In the complaint, CW alleges, and verifies as true, that it “has been and is duly authorized by the Trust to prosecute this action as agent and special servicer for the Trust.” However, CW did not file any evidence, affidavits or other documents, supporting its allegation that it was authorized to prosecute the action on behalf of the trust, as was done in Kumar, Juega ( real party in interest filed an affidavit affirming the authority to act in its behalf) and Chicago Properties ( Trustee filed affidavit ratifying authority to sue on its behalf). Although CW’s complaint is verified, it is verified by the “SVP” for CW—not by the real party in interest, the trust. CW relies on nothing more than its own allegations and affidavit to support its argument that it has standing to sue on behalf of the trust. This is insufficient evidence to prove that it is authorized to sue on the trust’s behalf.
In securitization cases, a servicer may be considered a party in interest to commence legal action as long as the trustee joins or ratifies its action. In re Rosenberg, 414 B.R. 826, 842 (Bankr.S.D.Fla.2009) (emphasis added). In CWCapital Asset Management, LLC v. Chicago Properties, LLC, 610 F.3d 497 (7th Cir.2010), the Seventh Circuit found that CW, as a special servicer to a loan, had standing to bring an action in its own name against a mortgagor and landlord for money paid by a tenant in settlement of a suit for unpaid rent. Id.at 499–500. Significantly, however, in opposition to the defendant’s motion for judgment on the pleadings (based on CW’s lack of standing), CW filed an affidavit of the trustee, which was not contradicted, ratifying the servicer’s (CW’S) commencement of the lawsuit. Id. at 502 (emphasis added). Additionally, the pooling and servicing agreement was placed in evidence as additional evidence that CW’s principal granted CW authority to enforce the debt instruments that CW neither owned nor held. Id. at 501.
Order for borrower to make interim payments to Plaintiff Reversed and remanded