TERRY A. KELLY AND LISA LOVINGOOD KELLY, APPELLANTS,
v.
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK AS TRUSTEE FOR CWALT INC., ALTERNATIVE LOAN TRUST 2007-25 MORTGAGE PASS THROUGH, CERTIFICATE SERIES 2007-25, APPELLEE
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The Florida First District Court of Appeal reversed a foreclosure judgment against homeowners Kelly and Lovingood Kelly, holding that the Bank of New York Mellon failed to establish standing to foreclose because it did not prove the mortgage note was endorsed to it before filing the complaint. Under Florida law, an undated blank endorsement on a note filed after the complaint is insufficient to establish standing without additional corroborating evidence.
The court held that the bank failed to establish standing to foreclose at the time of filing the complaint. An undated blank endorsement on a note filed after the complaint is insufficient to prove standing without additional evidence, such as testimony of a litigation analyst, establishing that the endorsement occurred before the complaint was filed.
[1] A plaintiff in a foreclosure action satisfies the standing requirement by presenting competent, substantial evidence that it has standing to foreclose at trial.
[2] A plaintiff must possess standing at the time the complaint is filed.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the primary legal rule that undated endorsements filed after complaint lack probative value for standing.
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Join FLexlaw to unlock all legal intelligenceThe Bank of New York Mellon filed a foreclosure action against the Kellys but did not file the original note with an undated blank endorsement until a…
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Appellants claim the trial court erred in entering a final judgment of foreclosure in favor of appellee after a nonjury trial because appellee failed to establish it had standing to bring the foreclosure action. When they challenged appellee’s standing below, appellants correctly noted that appellee did not file the original note bearing an undated .blank endorsement until after the filing of the complaint. “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.” Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015). Thus, “[wjhen a plaintiff asserts standing based on an undated endorsement of the note, it must show that the endorsement occurred before the filing of the complaint through additional evidence, such as the testimony of a litigation analyst.” Lloyd v. Bank of N.Y. Mellon, 160 So.3d 513, 515 (Fla. 4th DCA 2015).
The only additional evidence offered by appellee on this issue came from Natasha Moodie, a mortgage resolution associate for a prior servicer of the loan, who testified that appellee was the holder of the note based on her review of the loan servicer’s records. She also testified that the loan servicer’s routing history showed the “collateral file” was sent to appellee’s foreclosure counsel prior to the filing of the complaint. When appellee sought to offer into evidence a copy of the collateral file routing history, the trial court sustained appellants’ objection and stated, “I don’t see the probative value.” Because Moodie’s testimony did not establish the note had been endorsed at the time of the filing of the complaint, appellee failed to establish it had standing to foreclose when it filed the complaint. See Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351 (Fla. 1st DCA 2014) (holding that the successor plaintiff in a mortgage foreclosure action failed to establish the original plaintiff had standing to foreclose when it filed the foreclosure complaint where the testimony established only that the original plaintiff was in possession of the note at the time the complaint was filed, not that the note had been endorsed at that time, even though the successor plaintiff subsequently acquired the note endorsed in blank). Ac*147cordingly, we must reverse the final judgment of foreclosure. Id.
REVERSED.
RAY, SWANSON, and MAKAR, JJ., concur.
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Prapapun Kyser v. Bank OF Am., N.A., 186 So. 3d 58 (Fla. 1st DCA 2016)…of the note, we have explained, “‘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.’ ” Kelly v. Bank of N.Y. Mellon, 170 So. 3d 145, 146 (Fla. 1st DCA 2015) (citation omitted). When a plaintiff asserts its standing based on an undated endorsement of the note, it has to show that the endorsement occurred before the filing of the complaint through additional evidence, such as the…
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Rigby v. Bank OF NEW York Mellon, 228 So. 3d 183 (Fla. 1st DCA 2017)…filing shit, an undated blank endorsement [sic] on the note is insufficient to prove standing at the time the initial complaint was filed.” Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015); see also Kelly v. Bank of New York Mellon, 170 So. 3d 145, 146 (Fla. 1st DCA 2015) (quoting Tilus, 161 So. 3d at 1286). Because the blank indorsement on the note in this case was undated, and BONY’s status as the holder when the action was filed was a contested issue, BONY offered additional evidence at tr…
Authorities Cited
- Daniel and Nancy Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014)
- Tilus v. AS Michai LLC, 161 So. 3d 1284 (Fla. 4th DCA 2015)
- Lloyd v. The Bank OF NEW York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015)