WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE PRIMESTAR-H FUND I

v.

SALVADOR CONTRERAS AND MARISOL CONTRERAS BENITEZ

GROSSHANS, J.

Wilmington Savings Fund Society, FSB, as trustee for the Primestar-H Fund I Trust (Wilmington), appeals the final order dismissing with prejudice its foreclosure action

against Marisol Contreras Benitez (Benitez). We reverse the order of dismissal and remand for further proceedings consistent with this opinion. AmSouth Bank issued a loan to Salvador Contreras and Maria Contreras and, in return, Salvador and Maria signed a note promising to repay the loan amount, plus interest, by making monthly payments. Concurrent with the signing of the note, Salvador, Maria, and Benitez signed a mortgage, designating certain real property as collateral for the loan.

More than six years later, JP Morgan Chase Bank, N.A., (JP Morgan) filed a foreclosure lawsuit naming Salvador, Maria, Benitez, and others as defendants. The sole count alleged, in relevant part: Federal National Mortgage Association is the owner of the Note. Plaintiff is the servicer of the loan and is the holder of the Note. Federal National Mortgage Association has authorized Plaintiff to bring this present action.

Defendant(s), SALVADOR CONTRERAS, MARIA FELIX CONTRERAS[,] AND MARISOL CONTRERAS BENITEZ, own(s) the property.

There has been a default under the note and mortgage held by Plaintiff in that the payment due May¹, 2009 and all subsequent payments have not been made. Plaintiff declares the full amount due under the note and mortgage to be now due.

All conditions precedent to the filing of this action have been performed or have occurred.

There is now due, owing[,] and unpaid to the Plaintiff as of the date of the filing of this complaint the following amounts on principal of said note and mortgage: unpaid principal balance: $231,006.31, plus interest, escrow, title search expenses for ascertaining necessary parties to this suit, title search, title exam, filing fee, and attorney’s fees and costs.

To the complaint, JP Morgan attached copies of the note, the mortgage, and an assignment of mortgage to JP Morgan. Thereafter, the court granted JP Morgan’s motion to substitute Wilmington as the party plaintiff.

Ultimately, based on the signed consent of Salvador and Maria, the court entered a judgment of foreclosure in favor of Wilmington. Prior to the scheduled sale of the property, Benitez filed a motion to quash service of process, vacate the consent judgment, and dismiss the case. Following a hearing, the trial court entered an order quashing service for Benitez, but giving Wilmington additional time to effectuate proper service on her. Also in that order, the trial court vacated the consent judgment as to Benitez only. After a period of several months, Benitez moved to dismiss based on non-service and lack of jurisdiction.

However, finding that Wilmington properly served Benitez by constructive service, the trial court denied the motion. Benitez appealed this order, but we dismissed the appeal for lack of jurisdiction. Benitez v. Wilmington Sav. Fund Soc'y, FSB, 232 So. 3d 1162, 1163 (Fla. 5th DCA 2017), reh’g denied (Jan. 16, 2018).

On remand, Benitez filed a motion to dismiss the complaint, alleging the following grounds for dismissal: failure to plead capacity, failure to state a cause of action for mortgage foreclosure, non-negotiability of the note, failure of conditions precedent, lack of standing, and lack of subject-matter jurisdiction. Wilmington opposed the motion. After a hearing, the trial court granted the motion and dismissed the case. The order of dismissal does not provide the basis for the ruling, nor does the record indicate that Wilmington or counsel of record appeared at the hearing.

Wilmington sought rehearing, suggesting that the unelaborated dismissal order was based on Wilmington’s failure to effectuate personal service on Benitez. The trial

court denied the motion for rehearing in an unelaborated order, and this appeal timely followed. “As a general rule, ‘the standard of review of an order dismissing a complaint with prejudice is de novo.’ ” Chimera Servs., Inc. v. Prevatt, 267 So. 3d 556, 557 (Fla. 5th DCA 2019) (quoting Stubbs v. Plantation Gen. Hosp. Ltd. P'ship, 988 So. 2d 683, 684 (Fla. 4th DCA 2008)). “In ruling on a motion to dismiss, the trial court must confine itself to the four corners of the complaint, accept the allegations of the complaint as true, and construe the allegations in the light most favorable to the plaintiff.” Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So. 2d 1078, 1080 (Fla. 2d DCA 2002) (citing Hosp. Constructors Ltd. v. Lefor, 749 So. 2d 546 (Fla. 2d DCA 2000)).

Additionally, because the dismissal order does not include findings of fact or conclusions of law and we do not have a transcript of the hearing, we review all grounds raised in the motion to dismiss. See Nat'l Collegiate Student Loan Tr. 2006-4 v. Meyer, 265 So. 3d 715, 718 (Fla. 2d DCA 2019).1

In her motion to dismiss, Benitez first argued that JP Morgan failed to plead capacity, noting that the numbered paragraphs of the complaint did not assert the capacity in which “Plaintiff contend[ed] it may avail itself to the jurisdiction of this Court.” However, Florida Rule of Civil Procedure 1.120(a) only requires a plaintiff to allege capacity to “the extent required to show the jurisdiction of the court.” JP Morgan filed the single-count complaint seeking mortgage foreclosure in circuit court which, by statute, has exclusive jurisdiction over foreclosure claims of this amount. See § 26.012(2)(g), Fla. Stat. (2012); see also Alexdex Corp. v. Nachon Enters., Inc., 641 So. 2d 858 (Fla. 1994).

Therefore, the complaint was not deficient for lacking an assertion of capacity. Furthermore, a challenge to capacity is not properly raised in a motion to dismiss, but must be brought as a specific negative averment in a responsive pleading. See Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252–53 (Fla. 1st DCA 2012). Thus, this first ground did not support the court’s order of dismissal.

Benitez’s second claim in her motion to dismiss alleged that the complaint failed to adequately state a cause of action for mortgage foreclosure. “The elements of a foreclosure complaint are:¹) an agreement, 2) a default, 3) an acceleration of the amount due, and 4) the amount due.” Black Point Assets, Inc. v. Fed. Nat’l Mortg. Ass’n (Fannie Mae), 220 So. 3d 566, 568 (Fla. 5th DCA 2017) (citing Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014)). Here, the complaint asserted that Salvador and Maria signed the note; that Salvador, Maria, and Benitez signed the mortgage; that the required payments were not made; and that the full amount of the loan was due, which included the full amount of unpaid principal.

Thus, the complaint properly stated a cause of action for mortgage foreclosure.

Accordingly, this ground did not support dismissal of the complaint.

In the third ground of her motion to dismiss, Benitez alleged that the note was non-negotiable. However, courts have routinely rejected this argument, holding that standard residential notes are negotiable instruments. See Third Fed. Sav. & Loan Ass’n of Cleveland v. Koulouvaris, 247 So. 3d 652, 654 (Fla. 2d DCA 2018) (“We cannot bicker with the proposition that ‘for over a century . . . the Florida Supreme Court has held [promissory notes secured by a mortgage] are negotiable instruments. And every District Court of Appeal in Florida has affirmed this principle.’ ” (quoting HSBC Bank USA, Nat’l

Ass’n v. Buset, 241 So. 3d 882, 887 (Fla. 3d DCA 2018))).

Consequently, this claim did not support dismissal. Benitez next sought dismissal on the basis that the complaint failed to sufficiently allege that JP Morgan provided the required notice of acceleration to the borrowers.

However, as with any other plaintiff, a foreclosure plaintiff may broadly assert that it has complied with all conditions precedent. See Fla. R. Civ. P. 1.120(c) (“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.”); cf. Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So. 3d 626 (Fla. 5th DCA 2012).

Here, the complaint alleged that all conditions precedent had been met, and there were no additional allegations or attachments that contradicted this claim. See Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199, 1202 (Fla. 4th DCA 2015).

JP Morgan was not required to prove compliance with required conditions at the pleading stage, and therefore, this ground did not provide a basis for the complaint’s dismissal. As for the final two grounds for dismissal, Benitez alleged that the plaintiffs did not have standing to foreclose, and therefore, the court did not have subject-matter jurisdiction to hear the case.

Under Florida law, a foreclosure plaintiff must prove it has standing both at the time it brought the suit and at the time of trial. See Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1138 (Fla. 5th DCA 2017) (on rehearing) (citing McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)). Generally, the issue of standing is not properly raised in a motion to dismiss unless the allegations of the complaint or its attachments negate a plaintiff’s standing. See Jaffer, 155 So. 3d at 1202. In the complaint, JP Morgan claimed that it held the note, and JP Morgan attached to the complaint a copy of the note bearing a blank indorsement.

Moreover, no other allegations in or attachments to the complaint contradicted JP Morgan’s assertion of standing.

Additionally, as previously discussed, the circuit court has exclusive subject-matter jurisdiction over mortgage foreclosure cases.

Therefore, these final two claims did not support dismissal of the complaint.

For the foregoing reasons, we hold that the order of dismissal was not supported by any of the grounds alleged in the motion to dismiss.

Accordingly, we reverse the order and remand for further proceedings. REVERSED and REMANDED. ORFINGER and COHEN, JJ., concur.