AMERICAN HOME MORTGAGE SERVICING, INC., APPELLANT,
v.
LUCY BEDNAREK, APPELLEE
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American Home Mortgage Mortgage Servicing, Inc. appeals the dismissal of its foreclosure action for lack of standing. The court reversed, holding that AHMSI established standing to foreclose by possessing the original promissory note with a blank endorsement, making it the note holder with the right to enforce the note.
AHMSI established standing to foreclose because it possessed the original promissory note with a blank endorsement, making it the holder of the note. A foreclosure plaintiff has standing if it owns and holds the note at the time suit is filed, and a note holder or nonholder in possession of a note with the rights of a holder may foreclose a note secured by a mortgage.
[1] A party seeking foreclosure must establish standing at the time the complaint is filed.
[2] A foreclosure plaintiff has standing if it owns and holds the note at the time suit is filed.
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Join FLexlaw to unlock all legal intelligence“A party seeking foreclosure must establish that it had standing to foreclose at the time it filed the complaint.”
Establishes the temporal requirement for standing in foreclosure actions
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Join FLexlaw to unlock all legal intelligenceMs. Bednarek executed a promissory note and mortgage in 2005 in favor of American Brokers Conduit. The loan was subsequently sold to Deutsche Bank, an…
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American Home Mortgage Servicing, Inc. (AHMSI),1 appeals a final order dismissing its foreclosure action against Lucy Bednarek for lack of standing. Because we conclude the trial judge erred in finding that AHMSI did not establish its standing to foreclose on the mortgage when it filed the complaint, we reverse.
On May 31, 2005, Ms. Bednarek executed a note and mortgage in favor of Ameri*1223can Brokers Conduit for the purchase of real property. Thereafter, the loan was sold to Deutsche Bank. On March BO, 2006, American Brokers Conduit assigned the mortgage to the bank’s servicing agent, AHMSI-Maryland. In September 2007, AHMSI-Maryland filed a complaint for foreclosure, alleging it was the owner and holder of the underlying promissory note. With the complaint and the amended complaint, AHMSI-Maryland filed copies of the mortgage, the promissory note showing a blank endorsement, and the 2006 assignment of mortgage. In April 2008, AHMSI purchased AHMSI-Mary-land, acquiring the company’s servicing rights. In 2009, AHMSI filed the original note and mortgage with the trial court.
At the nonjury trial, AHMSI introduced the original note and mortgage into evidence. AHMSI also presented the testimony of its foreclosure special assets specialist, Krystal Kearse, who traced the history of the loan from its inception in 2005 when the loan was being serviced by its predecessor, AHMSI-Maryland, until AHMSI received the documents to proceed with foreclosure proceedings. Ms. Kearse testified that in purchasing AHM-SI-Maryland, AHMSI acquired the servicing rights to all of AHMSI-Maryland’s loans.
At the close of testimony, counsel for Ms. Bednarek made an oral motion to involuntarily dismiss the action, arguing AHMSI had no standing to foreclose because it was not the original plaintiff and not the owner and holder of the note. Relying on McLean v. JP Morgan Chase Bank National Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012), the trial court granted the motion on the ground AHMSI had failed to prove it was the owner of the note and mortgage.
A party seeking foreclosure must establish that it had standing to foreclose at the time it filed the complaint. McLean, 79 So.3d at 173. A foreclosure plaintiff has standing if it owns and holds the note at the time suit is filed. Id. A plaintiff may also establish standing to foreclose by submitting evidence of a special endorsement on the note in favor of the plaintiff or a blank endorsement, an assignment from the payee to the plaintiff, or an affidavit of ownership. Id. at 174.
Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder.
Stone v. BankUnited, 115 So.3d 411, 413 (Fla. 2d DCA 2013) (quoting Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011)).
Here, because the note at issue is endorsed in blank, and because AHMSI possessed the original note, its standing to foreclose is established from its status as the note holder. See id.; see also BAC Funding Consortium, Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”); Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007) (“The holder of a note has standing to seek enforcement of the note.”). Accordingly, we reverse the involuntary dismissal of AHMSI’s foreclosure action and remand for further proceedings.
Reversed and remanded.
CRENSHAW and BLACK, JJ„ Concur.
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Rodriguez v. Wells Fargo Bank, N.A., 178 So. 3d 62 (Fla. 4th DCA 2015)…Loans Servicing, LP, 155 So. 3d 444, 445 (Fla. 4th DCA 2015) (“We . agree that the plaintiff produced no evidence to show that it owned the note or mortgage on thé date of the filing' of the complaint.”); Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014) ("A foreclosure plaintiff has standing if it owns and holds the note at the time suit is filed.”) (citation omitted); Olivera v. Bank of Am., N.A., 141 So. 3d 770, 773 (Fla. 2d DCA 2014) ("Nothing in the record reflects a ch…
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Tamra Fiorito v. JP Morgan Chase Bank, 174 So. 3d 519 (Fla. 4th DCA 2015)…ed and held the note prior to the filing of the complaint based on its employee’s testimony that the bank acquired ownership of the note and mortgage pursuant to a purchase assumption agreement); see also Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014). As in the present case, “[wjhere the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit.”…
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Corrigan v. Bank OF Am., N.A., 189 So. 3d 187 (Fla. 2d DCA 2016)…Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013)). “Had the note with the blank endorsement [*190] been filed with the original complaint, that would haye been sufficient to show standing.” Id. (citing Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So. 3d 1222 (Fla. 2d DCA 2014)). But “a later filed copy of the note with.the endorsement [does] not suffice to show standing at the time the complaint was filed.” Id. (citing May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014)). Here, no note — not eve…
Previewing 3 of 8 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)
- Moshe Mazine and Jaacov E. Bouskila v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011)
- BAC Funding Consortium Inc. Isaoa/Atima v. Ginelle Jean-Jacques, 28 So. 3d 936 (Fla. 2d DCA 2010)
- Stone v. Bankunited, 115 So. 3d 411 (Fla. 2d DCA 2013)
- Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2004)