JOHN W. MILLER AND CHARLENE M. MILLER, APPELLANTS,
v.
KONDAUR CAPITAL CORPORATION, APPELLEE
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Standing cannot be raised in a motion for relief from final judgment if not raised in the original proceeding, and a non-holder in possession of an instrument is entitled to enforce it.
Appellants sought relief from a foreclosure judgment, claiming lack of standing and improper indorsement of the note. The original payee assigned the …
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We affirm the order denying appellants’ motion for relief from final judgment of foreclosure. Appellants claim lack of standing. We have held, however, that *219standing may not be raised in a motion for relief from final judgment where no affirmative defense of lack of standing was raised in the original proceeding raising the issue. See, e.g., Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012); Beaulieu v. JPMorgan Chase Bank Nat’l Ass’n, 80 So.3d 365 (Fla. 4th DCA 2012). Nevertheless, in this case the complaint was filed by the original payee and mortgagee, who assigned its interest in the note and mortgage to the appellee during the suit, substituting appellee as the party plaintiff. Thus, appellee stands in the shoes of the original plaintiff/mortgagee.
In addition, appellants claim that the note was not properly indorsed, so appellee could not show it was the holder of the note entitled to enforce it. Although the original note was not indorsed, the record shows that both the mortgage and note were assigned to appellee by the original payee by recorded assignment, and the original note was filed with the court. As such, appellee became a non-holder in possession of the instrument, entitled to enforce it. See § 673.3011(2), Fla. Stat. (2011); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So.3d 618, 622 (Fla. 5th DCA 2010).
Appellants point to a copy of the note filed in the proceedings which appears to have an endorsement on it, even though the original note filed in these proceedings has no endorsement. Although this copy of the note may be false and could be grounds for disciplinary action, it does not affect the determination of the substantive issues in the case.
Affirmed.
STEVENSON and GROSS, JJ., concur.
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Gafoor Jaffer and Nina Jaffer v. Chase Home Fin., LLC, 155 So. 3d 1199 (Fla. 4th DCA 2015)…motion. There is a significant body of law from this court that standing must be raised as an affirmative defense or it is waived. See, e.g., Pacheco v. Indymac Fed. Bank, F.S.B., 92 So. 3d 276 (Fla. 4th DCA 2012); Miller v. Kondaur Capital Corp., 91 So. 3d 218 (Fla. 4th DCA 2012); Phadael v. Deutsche Bank Trust Co. Amen, 83 So. 3d 893 (Fla. 4th DCA 2012). If standing is defined in its broadest sense, “a sufficient stake in an otherwise justiciable controversy,” the legal principle makes sense.9 However, I…
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Sandefur v. RVS Cap., LLC, 183 So. 3d 1258 (Fla. 4th DCA 2016)…anding because the order allowing its substitution as plaintiff also operated to establish its standing. While it is true that the plaintiff by substitution “stands in the shoes of the original plaintiff/mortgagee,” Miller v. Kondaur Capital Corp., 91 So. 3d 218, 219 (Fla. 4th DCA 2012), an order of substitution does not create standing. Rather, the substituted party acquires the standing (if any) of the original plaintiff at the time the case was filed. Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212, 121…
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Nationstar Mortg., LLC v. BO Chan, 226 So. 3d 330 (Fla. 5th DCA 2017)…not the original plaintiff; however, as the substitute plaintiff, Appellant “stands in the shoes of the original plaintiffimortgagee,” Sandefur v. RVS Capital, LLC, 183 So. 3d 1258, 1260 (Fla. 4th DCA 2016) (quoting Miller v. Kondaur Capital Corp., 91 So. 3d 218, 219 (Fla. 4th DCA 2012)), and “acquires the standing (if any) of the original plaintiff at the time the case was filed.” Id. (citing Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212, 1213 (Fla. 4th DCA 2014)), In the instant case, the original plai…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Phadael v. Deutsche Bank Tr. Co. Americas, 83 So. 3d 893 (Fla. 4th DCA 2012)
- Taylor v. Deutsche Bank Nat'l Tr. Co., 44 So. 3d 618 (Fla. 5th DCA 2010)
- Jo-Ann T. Beaulieu v. Jpmorgan Chase Bank, 80 So. 3d 365 (Fla. 4th DCA 2012)