SHERMAN BALCH AND ANNMARIE BALCH, APPELLANTS,
v.
LASALLE BANK N.A., AS TRUSTEE FOR WASHINGTON MUTUAL MORTGAGE PASS-THROUGH CERTIFICATES WMART SERIES 2006-5 TRUST, APPELLEE
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The Florida Fourth District Court of Appeal reversed a foreclosure judgment against homeowners Sherman and AnnMarie Balch, finding that LaSalle Bank failed to establish standing at the time it filed the foreclosure complaint. The court held that LaSalle Bank did not provide sufficient evidence of ownership of the promissory note through proper endorsement or valid assignment.
LaSalle Bank did not have standing at the time it filed the foreclosure complaint. The court found three independent deficiencies: no evidence showed when the special indorsement was placed on the note; the MERS assignment was executed after the complaint was filed; and the loan's transfer into the trust without evidence of intent to transfer interest to the trustee was insufficient.
[1] A plaintiff must demonstrate that an endorsement of a note occurred prior to the filing of a foreclosure lawsuit to establish standing based on that endorsement.
[2] An assignment of a mortgage and note executed after a foreclosure complaint is filed is insufficient, by itself, to establish standing at the time the complaint was initi…
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Join FLexlaw to unlock all legal intelligence“Where 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.”
Establishes the requirement that any endorsement relied upon for standing must predate the complaint filing.
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Join FLexlaw to unlock all legal intelligenceLaSalle Bank filed a foreclosure complaint in March 2008 against the Balches' mortgage. The original note, filed three months after the complaint, con…
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ON MOTION FOR REHEARING
We deny Appellee’s motion for rehearing, but withdraw our prior opinion and substitute the following in its place.
Sherman and AnnMarie Balch (collectively, “Homeowners”) appeal a final judgment of foreclosure entered in favor of LaSalle Bank N.A. (“LaSalle Bank”). We find the trial court erred in finding LaSalle Bank had standing at the time it initiated the foreclosure complaint, and accordingly reverse and remand for further proceedings.
Facts
LaSalle Bank filed its complaint in March of 2008. It sought to foreclose on the mortgage and to re-establish a lost note. LaSalle Bank attached to this complaint a copy of the mortgage and a copy of the note. The note listed American Home Mortgage as the lender and contained no indorsements. Close to three months later, LaSalle Bank filed the original note. The original note contained an undated special indorsement from American Home Mortgage to Washington Mutual Bank.
LaSalle Bank called one witness at trial. The witness worked for JP Morgan Chase Bank, the servicer for Homeowners’ loan. He explained that Homeowners’ loan was part of a pooling and servicing agreement (“PSA”) that came into existence in June of 2006. The PSA listed WaMu Acceptance Corporation as the depositor, Washington Mutual Bank as the servicer, and LaSalle Bank National Association as the trustee for the trust. Relying on servicing records and the closing date for the trust, the witness testified that Homeowners’ loan was transferred into the trust on or around June 29, 2006.
As it pertains to the note, the witness never specified when the special indorsement was placed onto the original note. LaSalle Bank also introduced into evidence a copy of an assignment, dated April 3, *2092008, which assigned MERS’ interest in the mortgage and note to LaSalle Bank. MERS was not a party to the PSA.
Homeowners moved for an involuntary dismissal, arguing LaSalle failed to prove standing. The trial court denied the motion and entered final judgment of foreclosure in favor of LaSalle Bank.
Analysis
“We review the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.” Lloyd v. Bank of New York Mellon, 160 So.3d 513, 514 (Fla. 4th DCA 2015). Here, LaSalle Bank did not provide sufficient evidence that it had standing at the time it filed the foreclosure complaint.
First, there was no evidence indicating when the special indorsement in favor of Washington Mutual Bank was placed onto the note. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 174 (Fla. 4th DCA 2012) (“Where 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.”). Secondly, the assignment is insufficient to establish standing, as the assignment was executed after the complaint was filed. See Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1195-96 (Fla. 4th DCA 2012) (reversing entry of final summary judgment because the bank failed to establish it had standing to foreclose when the evidence showed the assignment was dated one day after the complaint was filed). Finally, evidence that the note was transferred into the trust prior to the foreclosure action is insufficient by itself to confer standing because there was no evidence that the indorsee had the intent to transfer any interest to the trustee. See Jelic v. LaSalle Bank, Nat’l Ass’n, 160 So.3d 127, 130 (Fla. 4th DCA 2015) (reversing a final judgment of foreclosure, in part because there was no evidence that the party transferring the note into a trust had any intent to transfer an interest to the trustee).
Based on the foregoing, we reverse and remand for entry of an order of involuntary dismissal of the action. See Sosa v. U.S. Bank Nat’l Ass’n, 153 So.3d 950, 952 (Fla. 4th DCA 2014) (reversing and remanding for entry of an order of involuntary dismissal when the bank failed to provide sufficient evidence of its standing).
Reversed and remanded.
GERBER and LEVINE, JJ., concur.
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Schmidt v. Deutsche Bank, 170 So. 3d 938 (Fla. 5th DCA 2015)
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Perez v. Deutsche Bank Nat'l Tr. Co., 174 So. 3d 489 (Fla. 4th DCA 2015)…able to testify as to when the note was endorsed, and the PSA was not introduced into evidence. Even if the PSA had been introduced into evidence, the evidence still would have been insufficient to establish standing. In Batch v. LaSalle Bank N.A., 171 So. 3d 207, 209, (Fla. 4th DCA 2015), this court held that “evidence that the note was transferred into the trust prior to the foreclosure action is insufficient by itself to confer standing because there was no evidence that the indorsee had the intent to tra…
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Fallon Rahima Jallali v. Christiana Tr., 200 So. 3d 149 (Fla. 4th DCA 2016)…ri- or to the inception of the lawsuit. Appel-lee also failed to prove that Countrywide had standing to foreclose based upon the assignment of mortgage, as it was clear the assignment took- place after suit was filed. See Batch v. LaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015) (reversing a foreclosure judgment in part because the “assignment [of the mortgage] [*153] was executed after the complaint was filed”). Accordingly, we reverse the final judgment of foreclosure for lack of standing and rem…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)
- Rigby v. Wells Fargo Bank, 84 So. 3d 1195 (Fla. 4th DCA 2012)
- Alva Sosa and Alex Amador v. U.S. Bank Nat'l Ass'n, 153 So. 3d 950 (Fla. 4th DCA 2014)
- Lloyd v. The Bank OF NEW York Mellon, 160 So. 3d 513 (Fla. 4th DCA 2015)
- Jelic v. LaSALLE Bank, 160 So. 3d 127 (Fla. 4th DCA 2015)