CLEMENT C. BRANDENBURG AND LOUISE BRANDENBURG, APPELLANTS,
v.
RESIDENTIAL CREDIT SOLUTIONS, INC., APPELLEE
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The Fourth District Court of Appeal affirmed a summary judgment of foreclosure against borrowers who challenged the lender's standing. The court held that an unrecorded assignment does not invalidate the assignment and that the substituted plaintiff acquired standing through proper procedural substitution under Florida Rule of Civil Procedure 1.260.
Residential Credit Solutions had standing to foreclose. The failure to record an assignment does not render it invalid but only affects priority rights among assignees. The substituted plaintiff acquired the standing of the original plaintiff Amtrust through Rule 1.260 substitution, and Amtrust had standing when filing the complaint because the note showed proper assignment to Ohio Savings Bank (Amtrust) before filing.
[1] Failure to record an assignment of mortgage does not render the assignment invalid but affects the assignee's rights and priority against other assignees.
[2] A substituted transferee acquires the standing of the original plaintiff under Florida Rule of Civil Procedure 1.260 when the original plaintiff had standing at the time…
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Join FLexlaw to unlock all legal intelligence“the failure to record an assignment does not render it invalid but simply affects the rights/priority of the assignee mortgagees against other assignees”
Establishes that recording defects do not invalidate an assignment in foreclosure actions
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Join FLexlaw to unlock all legal intelligenceAppellants Brandenburg borrowed money evidenced by a note and mortgage. The note contained an allonge dated before the lawsuit assigning it to Ohio Sa…
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We affirm the final summary judgment of foreclosure. Appellants claim that ap-pellee failed to show that it had standing at the inception of the foreclosure action, because: (1) the assignment of mortgage to appellee was not recorded in the public records until after the commencement of the suit; and (2) the record shows that appellee did not acquire the note and mortgage until after commencement. Neither argument has merit.
First, the failure to record an assignment does not render it invalid but simply affects the rights/priority of the assignee mortgagees against other assignees. See generally § 701.02, Fla. Stat. (2013); JP Morgan Chase v. New Millennial, LC, 6 So.3d 681, 684-86 (Fla. 2d DCA 2009).
Second, as to standing, appellee acquired the note and mortgage from the prior holder, Amtrust Bank, which was the original plaintiff in this foreclosure action. Amtrust moved to substitute appellee as the plaintiff pursuant to Florida Rule of Civil Procedure 1.260. Under this rule, the substituted transferee (appellee) acquires the standing of the transferor original plaintiff (Amtrust). Amtrust had standing when the complaint was filed, in that the note attached to the complaint contained an allonge, dated before the fill*606ing of the lawsuit, assigning the note to Ohio Savings Bank. In support of the motion for summary judgment, appellee filed a certificate showing that Ohio Savings Bank had changed its name to Am-trust. Therefore, the note, together with the other filings, showed that Amtrust had standing to foreclose when it filed the complaint. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 172 (Fla. 4th DCA 2012).
The remaining arguments appellants make for reversal are not preserved, as they were not raised in the trial court. To the extent that appellants’ expert touched on alleged violations of the federal Real Estate Settlement Procedures Act (“RESPA”), even if preserved, the claim would not be meritorious, as such violations cannot be asserted against an assign-ee of the original lender. Good v. Deutsche Bank Nat’l Trust Co., 98 So.3d 1255,1256 (Fla. 4th DCA 2012).
Affirmed.
MAY and levine, JJ., concur.
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Daniel and Nancy Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014)…endorsed note "before the commencement of the underlying action”)). . Pursuant to Florida Rule of Civil Procedure 1.260, a substituted plaintiff acquires the standing of the original plaintiff. See Brandenburg v. Residential Credit Solutions, Inc., 137 So. 3d 604, 605-06 (Fla. 4th DCA 2014) (affirming a final summary judgment of foreclosure because the substituted plaintiff showed that the original plaintiff had standing to foreclose). . [Kieferts’ counsel]: [C]an you continue on and locate the amended comp…
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Lane A. Houk v. Pennymac Corp., 210 So. 3d 726 (Fla. 2d DCA 2017)…Lamb, 174 So. 3d at 1040-41. In support of its argument that it has standing to enforce the lost note derived from CitiMortgage through the order of substitution, PennyMac relies on the decision in Brandenburg v. Residential Credit Solutions, Inc., 137 So. 3d 604 (Fla. 4th DCA 2014). We find the decision in Brandenburg to be distinguishable because its facts are substantially different from the facts in this case. In Brandenburg, the Fourth District affirmed a final judgment of foreclosure in favor of Reside…
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Sandefur v. RVS Cap., LLC, 183 So. 3d 1258 (Fla. 4th DCA 2016)…the shoes of the bank and they’re entitled to summary judgment.” On appeal, Sandefur argues that RVS Capital failed to establish its standing as holder of the note. RVS Capital maintains that under Brandenburg v. Residential Credit Solutions, Inc., 137 So. 3d 604 (Fla. 4th DCA 2014), it was not required to prove its standing 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 origina…
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
- McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)
- JP Morgan Chase for Residential Funding Corp. v. NEW Millennial, LC, 6 So. 3d 681 (Fla. 2d DCA 2009)
- Good v. Deutsche Bank Nat'l Tr. Co. for the Certificate Holders of Soundview Home Loan Tr. 2006-OPT5, 98 So. 3d 1255 (Fla. 4th DCA 2012)