DIANA JELIC, APPELLANT,
v.
BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, L.P., APPELLEE
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A bank must properly demonstrate its standing to foreclose by proving it held the note at the time the complaint was filed, which requires more than just an assignment of the mortgage or undated endorsements.
[1] A party seeking to foreclose on a mortgage must demonstrate it held the note at the time the complaint was filed.
[2] An undated indorsement on a note, appearing for the first time after a foreclosure complaint is filed, is insufficient to prove standing at the time of filing without add…
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Join FLexlaw to unlock all legal intelligenceThe owner challenged the bank's standing to foreclose on a mortgage, arguing the bank failed to prove it held the note when the foreclosure complaint …
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We again consider the question of standing to foreclose upon a mortgage. Diana Jelic (“Owner”) signed a mortgage and note in 2005. In 2008, she stopped making payments on the note. BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP (and since merged into Bank of America, N.A.) (“the Bank” when used collectively) initiated a foreclosure proceeding. Owner challenged the Bank’s standing to foreclose along with its compliance with contractual conditions precedent in the mortgage and note. For the reasons given below, we agree with Owner that the Bank did not properly demonstrate its standing and therefore reverse the trial court’s Final Judgment of Foreclosure.
Owner initially executed a note and mortgage in favor of Sterling Bank. The note was later indorsed to Countrywide Bank. At some point, the note was indorsed from Countrywide Bank to Countrywide Home Loans Servicing. But the copy of the note attached to the complaint shows only the first indorsement (to Countrywide Bank). The second indorsement appears only on the note introduced at trial. No testimony was introduced giving the date on which the second indorsement was made, or stating that Countrywide Home Loans Servicing held the note at the time of the complaint.
The Bank provides two arguments as to how it proved that it was the holder of the note at the time the complaint was filed. Even if we ignore the fact that those arguments seem to contradict each other and instead address each individually, the Bank still has failed to show that it was the holder as of the date that the complaint was filed.
The Bank’s first argument is that the indorsements alone transferred the note into its control. However, the failure to introduce testimony establishing the date the second indorsement was made is fatal to this line of reasoning. We have said before, and apparently need say again: if an indorsement is undated and appears for the first time after the complaint is filed, some evidence must be introduced that will support a finding that the indorsement was made prior to the complaint’s filing. Tilus v. AS Michai LLC, 161 So.3d 1284, 1286 (Fla. 4th DCA 2015) (“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”); Sosa v. U.S. Bank Nat’l Ass’n, 153 So.3d 950, 951 (Fla. 4th DCA 2014); LaFrance v. U.S. Bank Nat’l Ass’n, 141 So.3d 754, 756 (Fla. 4th DCA 2014) (“A plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed and cannot be established retroactively by acquiring standing to file a lawsuit after the fact.”) (internal quotation.marks and citation omitted).
Statements that make exclusive use of the present tense (here: “Bank of America is the holder of the note” (emphasis added)) are insufficient. What is *525required is some evidence that the foreclosing party was the holder at the appropriate time. Although the Bank’s sole witness did say that the Bank “owned the loan prior- to the filing of the complaint,” she immediately corrected herself, answering with “No” when asked “So Bank of America never acted as the owner of this loan?” Because of that retraction, we cannot hold that the Bank introduced the necessary evidence to prove that the Bank held the note at the time the initial complaint was filed.
The Bank’s second argument as to how the note transferred is that a pre-complaint assignment of the mortgage to Countrywide Hóme Loans Servicing is evidence that the note'was also transferred before the complaint. ' But that is not how the law operates. Again we repeat: the mortgage follows assignment of the note. Bristol v. Wells Fargo Bank, Nat'l Ass’n, 137 So.3d 1130, 1133 (Fla. 4th DCA 2014). The assignment of a mortgage cannot serve as evidence that the note was also transferred, éven though a transfer of the note usually Ml serve as a transfer of the mortgage. Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039 (Fla. 4th DCA 2015) (“A bank does not have standing to foreclose where it relies on an assignment of the mortgage only.”).
As part of this second argument, Bank also argues that one specific line in the mortgage assignment transferred the note itself. But again, Florida law does not allow for a transfer in this method. To transfer a note, there must be an indorsement, which itself must be “on [the] instrument” or on “a paper affixed to the instrument.” § 673.2041(1), Fla. Stat. Here, the signature on the mortgage assignment did not constitute an indorsement of the note because it was not on the note or an attached paper."
The Bank has failed to establish its standing to foreclose. We therefore need not consider the Owner’s argument based on conditions precedent. The judgment of the trial court is reversed.
Reversed.
CIKLIN, C.J., and MAY, J., concur.
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Citator
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Peters v. The Bank OF NEW York Mellon, 227 So. 3d 175 (Fla. 2d DCA 2017)…sufficient to transfer any interest in the note to the Bank. See Russell v. 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 refl…
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US Bank v. Glicken, 228 So. 3d 1194 (Fla. 5th DCA 2017)…an assignment of the mortgage is insufficient to establish standing without an indorsement on the note predating the complaint. See Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 46 (Fla. 5th DCA 2015); see also Jelic v. BAC Home Loans Servicing, LP, 178 So. 3d 523, 525 (Fla. 4th DCA 2015) (citing Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015)). Indeed, the mortgage follows the note. See Deutsche Bank Nat’l Tr. Co. v. Lippi, 78 So. 3d 81, 85 (Fla. 5th DCA 2012) (citing Chem. Residential Mo…
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Selva Adriana Calvo and Marcos Fabian Calvo v. U.S. Bank Nat'l Ass'n for Structured Asset Sec. Corp. Mortg. Pass-Through Certificates, 181 So. 3d 562 (Fla. 4th DCA 2015)…ndorsement is undated and appears for the first time after the complaint is filed, some evidence must be introduced that will support a finding that the indorsement was made' prior to the complaint’s filing.” Jelic v. BAC Home Loans Servicing, L.P., 178 So. 3d 523, 524 (Fla. 4th DCA 2015). At bar, U.S. Bank’s witness was testifying from screenshots. The screenshots set forth the date the note changed hands, but did not set forth whether the note that was changing hands included the blank in-dorsement. ,.U.S,…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alva Sosa and Alex Amador v. U.S. Bank Nat'l Ass'n, 153 So. 3d 950 (Fla. 4th DCA 2014)
- Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015)
- Tilus v. AS Michai LLC, 161 So. 3d 1284 (Fla. 4th DCA 2015)
- Bristol v. Wells Fargo Bank, 137 So. 3d 1130 (Fla. 4th DCA 2014)
- Henri C. LaFRANCE and Marie LaFrance v. US Bank Nat'l Ass'n for CSFB Home Equity Pass-Through Certificates Series 2006-08, 141 So. 3d 754 (Fla. 4th DCA 2014)