JOYCE L. LEWIS, APPELLANT,
v.
J.P. MORGAN CHASE BANK, AS TRUSTEE, APPELLEE
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Lewis appeals a foreclosure judgment, arguing the bank lacked standing because it acquired the note and mortgage during the pendency of the action. The court affirmed, holding that standing existed at the inception of the suit because the original lender possessed the note and mortgage when filing, and subsequent assignment to the bank during litigation did not create a standing defect.
The bank had standing to pursue the foreclosure. Although a party must have standing at the inception of suit and cannot remedy a standing defect by subsequently obtaining standing, the original lender possessed standing when it filed suit because it owned the note and mortgage at that time. The subsequent assignment to the bank and substitution as plaintiff did not create a standing defect.
[1] A party must possess standing at the inception of a lawsuit and cannot cure a lack of standing by subsequently obtaining it.
[2] A plaintiff may assign a note and mortgage during the pendency of a foreclosure action, and the assignee may be substituted as the plaintiff.
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Join FLexlaw to unlock all legal intelligence“a party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing”
Establishes the general rule regarding standing that the court acknowledged but distinguished
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Join FLexlaw to unlock all legal intelligenceThe original lender filed a foreclosure action against borrower Lewis while possessing the promissory note and mortgage. During the pendency of the ac…
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The borrower appeals from the circuit court’s foreclosure judgment for the bank. The borrower argues that the bank did not have standing to pursue the foreclosure action because it acquired the note and mortgage and was substituted as the plaintiff during the pendency of the action. We disagree with the borrower’s argument because the original lender possessed the note and mortgage when it filed suit against the borrower before assigning the note and mortgage to the bank during the pendency of the action. Thus, we affirm the foreclosure judgment.
We recognize that on repeated occasions, we have held that “a party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” See, e.g., Gascue v. HSBC Bank, U.S.A., 97 So.3d 263, 264 (Fla. 4th DCA 2012); Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012); Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011). However, in each of those cases, the party which filed suit did not have standing to file suit because the party did not own, or had not been assigned, the note and mortgage at the time the party filed suit. See Gascue, 97 So.3d at 264-65; Rigby, 84 So.3d at 1196; Venture Holdings, 75 So.3d at 775 n. 1.
Here, though, the party which filed suit — the original lender — had standing to file suit at its inception because it owned the note and mortgage at the time it filed suit. Thus, unlike the situations in Gas-cue, Rigby, and Venture Holdings, this is a situation where the party which filed suit had standing to file suit at its inception, and merely assigned the note and mortgage during the pendency of the suit to another party, which then was substituted properly as the plaintiff. See Fla. R. Civ. P. 1.260(c) (2006) (“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”) (emphasis added). As a result, no standing defect exists.
We have considered the borrower’s other arguments on appeal, and conclude without further discussion that those arguments also lack merit.
Affirmed.
GROSS and FORST, JJ., concur.
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Sandefur v. RVS Cap., LLC, 183 So. 3d 1258 (Fla. 4th DCA 2016)…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, 1213 (Fla. 4th DCA 2014). The substituted plaintiff still must prove its own standing when judgment is entered. Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1040 (Fla. 4th DCA 2015) (“In addition to proving standing when the complaint is filed,…
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Spicer v. Ocwen Loan Servicing, LLC, 238 So. 3d 275 (Fla. 4th DCA 2018)…moved to substitute a new lender as the party plaintiff. We held that pursuant to Rule 1.260, the substituted plaintiff acquired the standing of the original plaintiff and had standing to foreclose. Id. Similarly, in Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212, 1213 (Fla. 4th DCA 2014), the borrower argued the bank did not have standing to pursue the foreclosure action because it had acquired its standing during the pendency of the lawsuit. We distinguished the case from cases where the original plaintiff…
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Luiz v. Lynx Asset Servs., LLC, 198 So. 3d 1102 (Fla. 4th DCA 2016)…hase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). While courts have permitted foreclosure by a substituted party plaintiff, the original plaintiff must have had standing at the inception of the suit. See Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212, 1213 (Fla. 4th DCA 2014). In this case, not only must Lynx have established its own standing, but as a substituted plaintiff, it was also required to prove that the original plaintiff, Liquidation, had standing at the time it filed the original com…
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
- Rigby v. Wells Fargo Bank, 84 So. 3d 1195 (Fla. 4th DCA 2012)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)
- Gascue v. HSBC Bank, 97 So. 3d 263 (Fla. 4th DCA 2012)