ALVA SOSA AND ALEX AMADOR, APPELLANTS,
v.
U.S. BANK NATIONAL ASSOCIATION, APPELLEE

Fla. 4th DCA | 2014-12-10
No. 4D13-1657
DAMOORGIAN, C.J., and GROSS, J., concur.
153 So. 3d 950 Florida District Court of Appeal, Fourth District (2014) Positive Treatment
Cited by 45 cases

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Synopsis

Homeowners appealed a final judgment of foreclosure, claiming the bank lacked standing to initiate the action. The court reversed the judgment, finding that the bank failed to establish when it became the owner of the promissory note, which is essential to proving standing to foreclose.


Holding

Bank lacked standing to initiate the foreclosure action because it failed to establish when it became the owner of the note, despite producing the original note and allonge with undated special endorsements.


Headnotes

[1] A plaintiff must prove it had standing to foreclose when the complaint was filed.

[2] Where a plaintiff's standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the law…

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Key Quotes

“the plaintiff must prove that it had standing to foreclose when the complaint was filed”

Establishes the fundamental requirement that standing must exist at the time the foreclosure complaint is filed, not later

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Facts & Procedural History

Bank filed a foreclosure complaint in November 2008 and initially sought to enforce a lost note. At trial, Bank introduced the original note and an al…

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Opinion of the Court
STEVENSON, J.

STEVENSON, J.

Alva Sosa and Alex Amador (“Homeowners”) appeal from a final judgment of foreclosure. U.S. Bank National Association (“Bank”) is the appellee. Finding the trial court erred in determining Bank had standing to initiate the foreclosure action, we reverse.

Facts

Bank filed its foreclosure complaint in November 2008. It attached to this complaint a copy of the mortgage but not a copy of the note, as Bank was originally seeking to enforce a lost note. Homeowners answered and raised lack of standing as an affirmative defense. The case proceeded to trial where, through the testimony of Bank’s one witness, the original promissory note was submitted into evidence, and final judgment was entered in favor of Bank.

Analysis

“We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.” Lacombe v. Deutsche Bank Nat'l Trust Co., 149 So.3d 152, 153 (Fla. 1st DCA 2014) (citing Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965 (Fla. 4th DCA 2013)). “[T]he plaintiff must prove that it had standing to foreclose when the complaint was filed.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). Relevant here, “[w]here 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.” Id. at 174. A plaintiff can establish standing through an affidavit of ownership, wherein standing is established “if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed.” Id. A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.

At trial, Bank introduced the original note and the allonge to note through a senior litigation analyst with Bank’s servi-cer. The original note contained an undated special endorsement in favor of Exam Financial Group, LLC, while the allonge to note contained an undated special endorsement in favor of Bank. Because the original note and the allonge to note were filed after Bank filed its foreclosure complaint, and each contained undated special endorsements, Bank had to establish standing through the testimony of the litigation analyst. It failed to do so.

Here, the analyst never stated when Bank became the owner of the note. He gave the date of the first endorsement found on the allonge to note, but he did not discuss the date of the second endorsement found on the allonge. The second endorsement found on the allonge to note was the pertinent one as it was the one which specially endorsed the note to Bank. See McLean, 79 So.3d at 174 (reversing summary judgment because the bank filed the original note with a special endorsement after it filed its complaint, the special endorsement was not dated and there was no evidence as to when the special endorsement was made). Although the analyst testified that Ocwen (Bank’s servicer) *952came into possession of the note prior to filing; the foreclosure action, such testimony is not dispositive as it is still unclear when Bank, through the placement of the special endorsement, became the owner of the note.

Because Bank failed to establish when it became the owner of the note, the trial court erred in finding Bank had standing to initiate the foreclosure action. Accordingly, we reverse the final judgment of foreclosure and remand for entry of an order of involuntary dismissal of the action. See Lacombe, 149 So.3d at 156 (“We decline to remand the case for presentation of additional evidence because ‘appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.’ ” (quoting Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010))).

Reversed and Remanded.

DAMOORGIAN, C.J., and GROSS, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (23 total)

  • …Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012). “A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.” Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014). “A trial court’s decision as to whether a party has satisfied the standing requirement is reviewed de novo.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla.2011). Here, the trial court erred in finding that Bank…
  • Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015)
    …Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012)). “A witness who testifies at trial as to the date a bank became the owner of the note can serve the same purpose as an affidavit of ownership.” Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014). Nationstar did not prove its standing to enforce the note through evidence of an assignment because the assignment at bar assigns only the mortgage. “The mortgage follows the assignment of the promissory note, but an assig…
  • Caraccia v. U.S. Bank, 185 So. 3d 1277 (Fla. 4th DCA 2016)
    …bench trial, the trial' court entered judgment in favor of U.S. Bank. This appeal followed. Analysis A. ' Standing “We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.” Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014) (quoting Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So. 3d 152, 153 (Fla. 1st DCA 2014)). Appellant first argues that U.S. Bank failed to show that it had standing to foreclose. Appellant contends that, because the note'…

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