EVERHOME MORTGAGE COMPANY, APPELLANT,
v.
DAVID G. JANSSEN AND KATHLEEN JANSSEN, APPELLEES
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Everhome Mortgage Company appealed a trial court order that vacated its foreclosure judgment against the Janssens, finding Everhome lacked standing because it was not the holder of the mortgage when it filed suit. The appellate court reversed, holding that possession of the note determines standing to foreclose and that even if standing was lacking at filing, the resulting judgment is merely voidable—not void—and cannot be set aside under the applicable rule.
A judgment is merely voidable, not void, even if the plaintiff lacked standing when it filed suit, and therefore cannot be set aside under Rule 1.540(b)(4). Additionally, standing to foreclose is determined by possession of the note, and a holder of the original note endorsed in blank has standing to foreclose.
[1] Possession of the note, not the mortgage, determines standing to foreclose.
[2] The holder of an original note endorsed in blank has standing to foreclose.
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Join FLexlaw to unlock all legal intelligence“possession of the note determines standing to foreclose”
Establishes the primary rule governing who has standing in foreclosure actions.
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Join FLexlaw to unlock all legal intelligenceEverhome Mortgage Company filed a foreclosure action against David and Kathleen Janssen and obtained a final judgment of foreclosure. The trial court …
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Everhome Mortgage Company appeals an order vacating a final judgment of foreclosure against David and Kathleen Janssen. See Fla. R. Civ. P. 1.540(b)(4). That order also dismissed Everhome’s foreclosure action. The trial court ruled that it had lacked jurisdiction to enter a final judgment because Everhome was not the holder of the mortgage when it filed the complaint. According to the trial court, *1240Everhome lacked standing to sue. The trial court erred.
We are compelled to point out that possession of the note determines standing to foreclose. See Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115, 1117 (Fla. 2d DCA 2011). The holder of the original note endorsed in blank has standing. Id. “[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an inci dent to the debt....” WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680, 682 (Fla. 4th DCA 2004) (quoting Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938)). More fundamentally, however, “[e]ven if [the plaintiff] lacked standing when it filed suit, the final judgment is merely voidable, not void.” Dage v. Deutsche Bank Nat’l Trust Co., 95 So.3d 1021, 1024 (Fla. 2d DCA 2012) (citing Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893, 895 (Fla. 4th DCA 2012)). “A voidable judgment may not be set aside under rule 1.540(b)(4).” Id. (citing Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007)). Therefore, we reverse and remand for further proceedings.
Reversed and remanded.
SILBERMAN, C.J., Concurs.
WHATLEY, J., Concurs in result only.
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Citator
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Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013)…Lean, 79 So. 3d at 173. Wells Fargo alternatively argues that it established standing by submitting the original note endorsed in blank. See Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d 224, 225-26 (Fla. 2d DCA 2012); Everhome Mortg. Co. v. Janssen, 100 So. 3d 1239, 1240 (Fla. 2d DCA 2012); Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013). As with the assignment, however, Wells Fargo did not submit the original note until several months after it had filed the complaint. To establis…
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Clay Cnty. Land Tr. # 08-04-25-0078-014-27 v. Jpmorgan Chase Bank, 152 So. 3d 83 (Fla. 1st DCA 2014)…note secured by the mortgage is sufficient by itself to establish standing to foreclose, even without a formal assignment of the mortgage. Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 321-22 (Fla. 5th DCA 2013); Everhome Mortg. Co. v. Janssen, 100 So. 3d 1239, 1240 (Fla. 2d DCA 2012); [*85] Chem. Residential Mortg. v. Rector, 742 So. 2d 300 (Fla. 1st DCA 1998). However, appellee must prove that it was a holder of the note in due course at the time of the filing of the foreclosure complaint. Kiefert v. Na…
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U.S. Bank Nat'l Ass'n v. Becker, 211 So. 3d 142 (Fla. 4th DCA 2017)…k [[Indorsement at the time it filed the complaint.”); Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (possession of original not indorsed in blank at time suit is filed establishes standing); Everhome Mortg. Co. v. Janssen, 100 So. 3d 1239, 1240 (Fla. 2d DCA 2012) (“The holder of the original note [[Indorsed in blank has standing.”). Further, to the extent that there was any question about whether the undated [*145] allonge created an issue as to the chain of ownership, the Bank pres…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johns v. Gillian, 134 Fla. 575 (Fla. 1938)
- Phadael v. Deutsche Bank Tr. Co. Americas, 83 So. 3d 893 (Fla. 4th DCA 2012)
- State v. King, 968 So. 2d 658 (Fla. 4th DCA 2007)
- WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004)
- Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115 (Fla. 2d DCA 2011)
- Sterling Factors Corp. v. U.S. Bank Nat'l Ass'n, 968 So. 2d 658 (Fla. 2d DCA 2007)
- Dage v. Deutsche Bank Nat'l Tr. Co., 95 So. 3d 1021 (Fla. 2d DCA 2012)