MIGUEL TILUS, ALTA TILUS, ROSE A. JOASEUS AND KESNER JOASEUS, APPELLANTS,
v.
AS MICHAI LLC, APPELLEE

Fla. 4th DCA | 2015-04-08
No. 4D13-3616
GROSS, TAYLOR and LEVINE, JJ., concur.
161 So. 3d 1284 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 37 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Holding

A plaintiff must demonstrate standing at the inception of a foreclosure lawsuit, and an undated endorsement or assignment of mortgage alone is insufficient proof.

Headnotes

[1] A plaintiff must prove standing to foreclose at the time the lawsuit was filed.

[2] Under the Uniform Commercial Code, a plaintiff is not required to be both the owner and holder of the note to have standing to foreclose.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence
Facts & Procedural History

Defendants appealed a final judgment of foreclosure entered after the trial court granted the plaintiff's motion for summary judgment. The plaintiff's…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.

Topics
Assignment Of Mortgage Standing To Foreclose Foreclosure Summary Judgment Standard

Explore caselaw by topic → Browse Assignment Of Mortgage cases and more on FLexlaw

Opinion of the Court
PER CURIAM.

PER CURIAM.

We sua sponte withdraw our previous opinion and issue the following in its place.

The defendants appeal a final judgment of foreclosure entered after the trial court granted the plaintiffs motion for summary judgment. We reverse because a genuine issue of material fact remains as to whether the plaintiff had standing at the inception of the lawsuit.

The standard of review of an order granting summary judgment is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010).

The plaintiff must prove that it had standing to foreclose at the time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). We clarify, however, *1286that under the Uniform Commercial Code, a plaintiff is not required to be both the owner and holder of the note in order to have standing to foreclose.1 See Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 322 (Fla. 5th DCA 2013) (“Appellees cite Florida Supreme Court precedent dating back to the late 1800s to suggest Appellant must both hold and own the note and mortgage to satisfy the standing requirement for a foreclosure action. The cases Appellees cite are not persuasive because the supreme court decided the cases prior to the adoption of the now-instructive and binding Florida UCC.”).

Instead, the plaintiff may establish standing by showing that it owns or holds the note, or is otherwise entitled to enforce the note. See Vidal v. Liquidation Props., Inc., 104 So.3d 1274, 1276 (Fla. 4th DCA 2013) (explaining that “the one who owns or holds the note is entitled to foreclose”); Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011) (“[T]he person having standing to foreclose a note secured by a mortgage may be ... a nonholder in possession of the note who has the rights of a holder.”); § 673.3011, Fla. Stat. (2012) (identifying persons entitled to enforce an instrument under the UCC, and explaining that “[a] person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument”).

Where the plaintiff files the original note after filing suit, an undated blank endorsement on the note is insufficient to prove standing at the time the initial complaint was filed. Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So.3d 1130, 1132 (Fla. 4th DCA 2014). Moreover, an assignment of mortgage, even if executed before the foreclosure action commenced, is insufficient to prove standing where the assignment reflects transfer of only the mortgage, not the note. Id. at 1133. The mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee. Id.

Here, the plaintiffs documents failed to demonstrate that the plaintiff had standing to foreclose at the time it originally filed suit. The undated blank endorsement on the original note, which was filed over a month after the plaintiff initially brought suit, was insufficient to prove that the plaintiff had standing to enforce the note at the inception of the lawsuit. Likewise, the “Assignment of Mortgage” from DLJ Mortgage Capital to the plaintiff reflected a transfer of only the mortgage, not the note. Because there was no proof that the plaintiff was entitled to enforce the note when it filed the initial complaint, the Assignment of Mortgage to the plaintiff was insufficient to establish the plaintiffs standing at the inception of the case. Thus, a genuine issue of material fact still exists as to when the plaintiff took possession of the note.

We reverse the final judgment of foreclosure and remand for further proceedings. In light of this disposition, we de*1287cline to address the defendants’ other arguments for reversal.

Reversed and Remanded.

GROSS, TAYLOR and LEVINE, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By (21 total)

  • Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015)
    …ment because the assignment at bar assigns only the mortgage. “The mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So. 3d 1130, 1133 (Fla. 4th DCA 2014)). A bank does not have standing to foreclose where it relies on an assignment of the mortgage only. We also find that Nationstar f…
  • Lane A. Houk v. Pennymac Corp., 210 So. 3d 726 (Fla. 2d DCA 2017)
    …the assignment transferred only the mortgage, not the note. “The mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment -of the debt creates no right in the assignee.” Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So. 3d 1130, 1133 (Fla. 4th DCA 2014)). PennyMac did not acquire standing to foreclose based on an assignment of only the mortgage. See Eaddy v. Bank of America, N.A., 1…
  • Peters v. The Bank OF NEW York Mellon, 227 So. 3d 175 (Fla. 2d DCA 2017)
    …. Aurora Loan Servs., LLC, 163 So. 3d 639, 641-42 (Fla. 2d DCA 2015); Kyser v. Bank of Am., N.A., 186 So. 3d 58, 60 (Fla. 1st DCA 2016); Jelic v. BAC Home Loans Servicing, LP, 178 So. 3d 523, 525 (Fla. 4th DCA 2015); see also Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (“[A]n assignment of mortgage, even if executed before the foreclosure action commenced, is insufficient to prove standing where the assignment reflects transfer of only the mortgage, not the note.”). In support of its sta…

Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw