MICHAEL GLYNN, APPELLANT,
v.
FIRST UNION NATIONAL BANK; ESTHER GLYNN; THE CITY OF TAMARAC; JOHN DOE; JANE DOE, AS UNKNOWN TENANT(S) IN POSSESSION OF THE SUBJECT PROPERTY, APPELLEES
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The court held that the defendant waived the affirmative defense of lack of standing by failing to raise it in the trial court and that the equitable transfer of the note occurred prior to filing suit.
The mortgagee sought to re-establish a lost note and foreclose. The defendant did not file a motion or answer in the trial court. An assignment of the…
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PER CURIAM.
We deny rehearing en banc, but withdraw our opinion of July 13, 2005, entered in this appeal, and substitute the following opinion in its place.
We affirm an order denying Glynn’s motion to vacate a judgment of foreclosure and his objection to clerk’s sale. The mortgagee, First Union, acknowledged confusion in the record transfers of the note and mortgage. It sought to re-establish the note in count one of the complaint. Glynn never filed a motion or an answer in the trial court, thereby waiving any claim that First Union lacks standing. “There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver.” Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005). In any event, the record reflects that First Union was in possession of the note at the time it was lost, and the trial court re-established the note pursuant to section 71.011, Florida Statutes.
Further, although an assignment to First Union by its servicing agent, Fairbanks, was not formally executed until after suit was filed, it is clear from the undisputed record that equitable transfer to First Union occurred prior to filing the complaint. There is no transcript of record and, although Glynn was represented by counsel, there was no motion to dismiss, answer, or affidavits filed in opposition to First Union’s proofs.
Glynn also argues fraud as a ground to set aside the final judgment. The first time this argument is raised on the record is in his initial appellate brief. This issue may not be raised for the first time on appeal. Rolfs v. First Union Nat’l Bank, 604 So. 2d 1269, 1270 (Fla. 4th DCA 1992).
The order denying Glynn’s objection to clerk’s sale and motion to vacate is affirmed.
STONE, SHAHOOD and MAY, JJ., concur.
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Phadael v. Deutsche Bank Tr. Co. Americas, 83 So. 3d 893 (Fla. 4th DCA 2012)…actual allegations of the complaint. Id. We have previously explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver. See Glynn v. First Union Nat’l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005) (holding that a homeowner waived any claim that the bank lacked standing to foreclose where the homeowner never filed a motion or an answer in the trial court); see also Schuster v. Blue Cross & Blue Shield of Fla., Inc., 84…
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Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)…66) (citations omitted). Real, in case no. 09-018086, was found to be in default. Venture in case no. 09-19636, was found to be in default. Neither party may contest AJ.M.’s standing at the inception of the suit. See Glynn v. First Union Nat’l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005) (holding that a homeowner waived any claim that the bank lacked standing to foreclose where the homeowner never filed a motion or an answer in the trial court). But even a party in default does not admit that the plaintiff…
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Gafoor Jaffer and Nina Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199 (Fla. 4th DCA 2015)…atedly held that standing is an affirmative defense and failure to raise it in a responsive pleading generally results in a waiver. Phadael v. Deutsche Bank Trust Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012); Glynn v. First Union Nat’l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005); Kissman v. Panizzi, 891 So. 2d 1147, 1150 (Fla. 4th DCA 2005). The Jaffers did not file an answer or affirmative defenses, and a default was entered against them. Having waived the defense of standing, the borrowers cannot…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kissman v. Panizzi, 891 So. 2d 1147 (Fla. 4th DCA 2005)
- Rolfs v. First Union Nat'l Bank of Fla., 604 So. 2d 1269 (Fla. 4th DCA 1992)