SHAWN BOYD, APPELLANT,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-1 ASSET-BACKED CERTIFICATES SERIES 2006-1; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR HOME LOAN CENTER, INC., D/B/A LENDING TREE LOANS; STEPHEN G. BOYD A/K/A STEPHAN G. BOYD; JOHN DOE; JANE DOE, AS UNKNOWN TENANT(S) IN POSSESSION OF THE SUBJECT PROPERTY, APPELLEES
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Shawn Boyd appeals a foreclosure judgment entered against him by Wells Fargo Bank. The Fourth District Court of Appeal reverses, holding that Wells Fargo failed to establish standing to bring the foreclosure action because it did not prove it owned and held the note and mortgage at the time it filed the complaint.
No. Wells Fargo lacked standing at the time it filed the foreclosure complaint because it failed to present evidence that it owned and held the note and mortgage. A party must have standing at the inception of suit and cannot remedy a lack of standing by subsequently obtaining the required documentation.
[1] A party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question at the time the complaint is filed.
[2] A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.
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Join FLexlaw to unlock all legal intelligence“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.”
Establishes the fundamental requirement for standing in foreclosure actions
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Join FLexlaw to unlock all legal intelligenceWells Fargo filed a foreclosure complaint in February 2008 against Shawn Boyd. The complaint attached a mortgage showing DCS Mortgage, Inc. as the ori…
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Shawn Boyd appeals from a final judgment of foreclosure. Because Wells Fargo failed to prove it had standing at the time it filed its foreclosure complaint, we reverse.
Wells Fargo filed its foreclosure complaint in February of 2008. Attached to this complaint was a mortgage showing DCS Mortgage, Inc., as the lender. DCS Mortgage then assigned the mortgage to Option One. Nowhere in the record is *1129there an indication that Option One assigned the mortgage to Wells Fargo.
A de novo standard of review applies when reviewing whether a party has standing to bring an action. Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965, 967 (Fla. 4th DCA 2013) (citing Westport Recovery Corp. v. Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007)).
“‘The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.’ ” Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010) (quoting Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010)). To satisfy this burden, Wells Fargo was required to submit either “the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.” Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012) (citing Servedio, 46 So.3d at 1107).
Here, Wells Fargo has provided no documentation which establishes that it had standing at the time it filed the foreclosure complaint. See Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011) (“A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.”). Although Wells Fargo eventually did file an Allonge to Note bearing a special endorsement in favor of it, the Allonge itself contains no date. See Rigby, 84 So.3d at 1196 (“The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of Bank was not dated.”). Moreover, Wells Fargo was apparently never assigned the mortgage and the note. The only assignment in the record is from DCS to Option One. Finally, Wells Fargo did not submit “an affidavit of ownership proving its status as holder of the note.” Id. (citing Servedio, 46 So.3d at 1107).
Accordingly, we reverse the final judgment of foreclosure.
Reversed.
CIKLIN and FORST, JJ., concur.
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Figueroa v. Fed. Nat'l Mortg. Ass'n, 180 So. 3d 1110 (Fla. 5th DCA 2015)…(Fla. 2d DCA 2013)). Accordingly, Fannie Mae did not properly reestablish the lost note. [*1115] Lack of Standing A “de novo standard of review applies when reviewing whether a party has standing to bring an action.” Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 2014) (citations omitted). “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d…
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Schmidt v. Deutsche Bank, 170 So. 3d 938 (Fla. 5th DCA 2015)…(Fla. 2d DCA 2010); Philogene v. ABN Amro Mortg. Grp., Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006)). The burden is on the party seeking foreclosure to prove by substantial competent evidence that it has standing. See Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 2014). Here, Bank asserted it had standing as the holder of the note. To be a “holder” entitled to enforce under the facts of this case, Bank was required to show physical possession of the original note and the allonge endorsed…
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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)…st prove that it was a holder of the note in due course at the time of the filing of the foreclosure complaint. Kiefert v. Nationstar Mortg., LLC, 2014 WL 5099374, 39 Fla. L. Weekly D2151 (Fla. 1st DCA Oct. 13, 2014); Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128 (Fla. 4th DCA 2014); Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014); Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). When appellee filed the foreclosure complaint, it attached a copy of the note a…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Guiseppe Servedio v. US Bank Nat'l Ass'n, 46 So. 3d 1105 (Fla. 4th DCA 2010)
- Rigby v. Wells Fargo Bank, 84 So. 3d 1195 (Fla. 4th DCA 2012)
- Lavern Dixon v. Express Equity Lending Grp., LLLP, 125 So. 3d 965 (Fla. 4th DCA 2013)
- Lizio v. McCULLOM, 36 So. 3d 927 (Fla. 4th DCA 2010)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)
- Westport Recovery Corp. v. Midas, 954 So. 2d 750 (Fla. 4th DCA 2007)