DAVID RIGBY AND KATHLYN RIGBY, APPELLANTS,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007-FXD2 ASSET-BACKED CERTIFICATES, SERIES 2007-FXD2, APPELLEE
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Wells Fargo sought to foreclose on a mortgage held by the Rigbys. The trial court granted summary judgment for the bank, but the appellate court reversed, holding that the bank failed to establish standing to foreclose because it did not demonstrate possession of the note at the time the complaint was filed.
No. The bank failed to establish standing to foreclose because it did not demonstrate possession of the note at the time the complaint was filed. An assignment dated after filing suit, an undated special endorsement, and an insufficient affidavit do not satisfy the requirements for establishing standing.
[1] A party challenging the sufficiency of the evidence in a mortgage foreclosure action after a bench trial may obtain appellate review despite deficiencies in trial objecti…
[2] A plaintiff seeking to foreclose a mortgage must establish standing as of the time of filing the foreclosure complaint.
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Join FLexlaw to unlock all legal intelligence“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.”
Establishes the fundamental requirement that standing is essential in foreclosure cases
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Join FLexlaw to unlock all legal intelligenceWells Fargo filed a foreclosure complaint on May 21, 2008, against the Rigbys on a mortgage originally held by Option One Mortgage Corporation. The ba…
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This appeal stems from a complaint of foreclosure filed by the appellee, Wells Fargo Bank, N.A., as trustee (“Bank”), against the appellants David Rigby and Kathlyn Rigby. The trial court entered final summary judgment. Because Bank failed to meet its burden on summary judgment, we reverse.
The Bank filed its complaint on May 21, 2008, and attached a mortgage that named Option One Mortgage Corporation (“Option One”) as the lender. Subsequently, the Bank filed an assignment of mortgage, from Option One to Bank, dated May 22, 2008, as well as the undated original note containing a special endorsement in favor of Bank. The parties proceeded to discovery and Bank sought an admission from the Rigbys acknowledging that they had previously received notice that the note and mortgage had been transferred to Bank. The Rigbys failed to respond to this request. Bank then filed a motion for summary judgment, attaching an affidavit wherein the affiant swore that Bank was holder and owner of the mortgage. Based *1196on this record, the trial court entered summary judgment. A trial court’s entry of summary judgment is reviewed de novo. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009).
The Bank failed to establish that it had standing to foreclosure upon the note. “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). To establish standing, the plaintiff must submit the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note. Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010). “A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011). The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of Bank was not dated. The assignment of mortgage, dated May 22, 2008, indicates that Bank did not acquire the mortgage until the day after the complaint was filed. Finally, neither the affidavit, nor the technical admissions made by the Rigbys, establishes the date on which Bank acquired possession of the note and there is no evidence in the record establishing that an equitable transfer of the mortgage occurred prior to the date the complaint was filed. See McLean, 79 So.3d at 174 (reversing final summary judgment of foreclosure because ap-pellee bank failed to establish standing where mortgage was assigned to bank three days after lawsuit was filed; note contained undated special endorsement in favor of bank; and affidavit in support of summary judgment failed to indicate that bank became equitable owner of note and mortgage prior to date lawsuit was filed).
Reversed.
WARNER and CONNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (28 total)
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Daniel and Nancy Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014)…ing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed.3 See id. (citing Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012)); see also Ryan v. Wells Fargo Bank, N.A., 142 So. 3d 974, 974-75 (Fla. 4th DCA 2014) (holding the plaintiff failed to establish standing when, [*353] among other things, it “did not demonstrate that the endorsement occurre…
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Adiel Gorel & Flca Tropical Holdings, LLC v. The Bank OF NEW York Mellon, 165 So. 3d 44 (Fla. 5th DCA 2015)…3d 932, 933 (Fla. 4th DCA 2010). Additionally, a plaintiff can submit “an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note” in order to establish standing. Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012). “A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.” Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014). “A tri…
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Lavern Dixon v. Express Equity Lending Grp., LLLP, 125 So. 3d 965 (Fla. 4th DCA 2013)…anding, the plaintiff must submit the note bearing a special [ijndorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.”1 Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012). Here, the lender did not have standing to foreclose. Although the lender’s president testified that the lender was the owner and holder of the note, the special indorsement appearing on the back of the original note sugge…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)
- Guiseppe Servedio v. US Bank Nat'l Ass'n, 46 So. 3d 1105 (Fla. 4th DCA 2010)
- Frost v. Regions Bank, 15 So. 3d 905 (Fla. 4th DCA 2009)
- Dwon Kimble v. State, 15 So. 3d 905 (Fla. 3d DCA 2009)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)