ROSANNA GUZMAN AND FRANCISCO GUZMAN, APPELLANTS,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR INDYMAC INDX MORTGAGE LOAN TRUST 2004-AR8 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2004-AR8, ET AL., APPELLEES

Fla. 4th DCA | 2015-11-25
No. 4D14-2509
DAMOORGIAN and LEVINE, JJ„ concur.
179 So. 3d 543 Florida District Court of Appeal, Fourth District (2015) Caution
Cited by 7 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.

Synopsis

Deutsche Bank failed to establish standing to foreclose on the Guzmans' mortgage because it did not prove possession of the endorsed promissory note at the time it filed its initial complaint. The court reversed the foreclosure judgment, holding that standing must be established at the inception of the lawsuit and cannot be retroactively acquired through amended pleadings.


Holding

Deutsche Bank lacked standing to foreclose because it failed to prove possession of the endorsed note at the inception of the lawsuit. Allowing documents attached to an amended complaint to be given retroactive effect to establish standing violates the requirement of pre-suit ownership in foreclosure cases.


Headnotes

[1] A plaintiff in a mortgage foreclosure action must prove standing at the time the initial complaint is filed.

[2] A party seeking to foreclose must establish an assignment or equitable transfer of the note and mortgage prior to instituting the complaint.

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Key Quotes

“a '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 of filing, not after.

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Facts & Procedural History

Rosanna and Francisco Guzman executed a mortgage and promissory note with Grimaldi Capital Funding. After defaulting, Deutsche Bank filed a foreclosur…

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Opinion of the Court
KLINGENSMITH, J.

KLINGENSMITH, J.

Rosanna and Francisco Guzman (“appellants”) appeal a final judgment of foreclosure in favor of Deutsche Bank National Trust Company (“appellee”), and challenge appellee’s standing to bring suit. They argue the trial court erred by ruling that appellee had standing to foreclose because appellee did not provide evidence that it was in possession of an allonge and a blank-endorsed note at the time it filed the initial complaint. Because appellee failed to prove that It possessed the right to foreclose when the initial complaint was filed, we reverse. We see no need to address the other issues raised. _

Appellants originally executed a mortgage agreement and promissory note with Grimaldi Capital Funding (“Grimaldi”). After appellants defaulted on -their payments, appellee filed its initial complaint for foreclosure attaching both the note and the mortgage on the property. However, the attached note did not contain any endorsements, nor did the documents reflect that there had been an assignment of the mortgage from Grimaldi- to appellee. Even though Count I of the complaint for foreclosure alleged that appellee was the holder, and owner -of both the note and mortgage, appellee brought a declaratory judgment action in Count II against Gri-maldi, admitting that it had doubts as to its rights in the mortgage because Grimal-di had not executed an assignment of the mortgage to appellee. Upon agreement of the parties, the trial court dismissed the complaint with leavé for appellee to file an amended pleading. ,

Appellee then filed an amended complaint alleging only one count of foreclo*545sure against appellants and abandoning the count for declaratory relief. This time, appellee .claimed that Grimaldi had executed an allonge bearing a special endorsement in favor of IndyMac Bank, F.S.B. (“IndyMac”),1 which then later endorsed the note in blank. The note bearing the blank endorsement from IndyMac, the al-longe, and the mortgage were all attached to the amended complaint. Neither the special endorsement on the allonge nor the blank endorsement on the note was dated.2

During the non-jury trial, a loan analyst for appellee’s servicer, Ocwen Loan Servicing (“Ocwen”), testified for appellee. Ocwen* held all of the. records regarding appellant’s loan, which it had acquired from the prior servicer, IndyMac. The analyst could not provide dates for when the allonge containing the special endorsement from Grimaldi to IndyMac was created, or for when IndyMac placed the blank endorsement on the back page, of the note. Moreover, when the trial judge asked ap-pellee’s counsel how the court could be certain that the allonge and the blank endorsement were not created between the time the initial complaint was filed and the time the amended complaint was filed, counsel responded that he could not prove that both the allonge and the blank endorsement predated the filing of the initial complaint, or that appellee possessed the note and mortgage prior to filing the initial complaint.

Counsel for appellee.argued that these documents were in appellee’s possession at the time the amended complaint was filed, and because the allonge and note were attached to the amended complaint, they related-back to the date of the initial complaint’s filing, thus establishing appellee’s standing to foreclose. . The trial court accepted appellee’s relation-back argument, ruled that appellee had standing to bring suit, and rendered final'judgment of foreclosure in favor of appellee. This was error.

-In a foreclosure action, a “ ‘plaintiff must prove that it had standing to foreclose when the complaint was filed.’ ” Vidal v. Liquidation Props., Inc., 104 So.3d 1274, 1276 (Fla. 4th DCA 2013) (quoting McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012)). A party must prove it has “standing to bring a mortgage foreclosure complaint by establishing an assignment or equitable transfer of the note and mortgage prior to instituting the complaint.” Joseph v. BAC Home Loans Servicing, LP, 155 So.3d 444, 446 (Fla. 4th DCA 2015) (citing McLean, 79 So.3d at 173).

For-a plaintiff* to qualify as a holder of a promissory note, the note must either'list the plaintiff as the payee, or it “must bear a special endorsement in favor of the plaintiff or a blank endorsement.” McLean, 79 So.3d at 173. Where a promissory note filed after the initial complaint does not include the date upon which , the endorsement was made, the plaintiff must provide “record evidence proving that it had the right to enforce the note on the date the complaint was filed.” See id. This evidence may be supplied by witnéss *546testimony at trial. Lamb v. Nationstar Mortg., LLC, 174 So.3d 1039, 1041 (Fla. 4th DCA 2015) (“ ‘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.’” (quoting Sosa v. U.S. Bank Nat’l Ass’n, 153 So.3d 950, 951 (Fla. 4th DCA 2014))).

“[Possession of the original note, indorsed in blank, [is] sufficient under Florida’s Uniform Commercial Code to establish that [a party-is] the lawful holder of the note, entitled to enforce its terms.” Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Therefore, to enforce a note endorsed in blank, a foreclosing party must show -that they had possession of the note at the inception of the lawsuit.

Alternatively, foreclosing parties may present an allonge to establish standing. “‘An allonge is a piece of paper annexed to a negotiable instrument. or promissory note, on ’which to write endorsements for which there is no room on the instrument itself. Such .must be so firmly affixed thereto as to- become a part thereof.’ ” Seffar v. Residential Credit Solutions, Inc., 160 So.3d 122, 125 (Fla. 4th DCA 2015) (quoting Booker v. Sarasota, Inc., 707 So.2d 886, 887 n. 1 (Fla, 1st DCA 1998)). “If the note or allonge reflects on its' face that the endorsement occurred before -the filing of the complaint, this is sufficient to establish standing.” McLean, 79 So.3d at 174."

Appellee argues that the note attached to the initial complaint actually had the endorsement on the back of it, proving that it had standing at the time it filed the initial -complaint. Here, it is undisputed that there were no endorsements on the note attached to appellee’s initial complaint, and no affixed allonges. When ap-pellee filed its amended complaint, it attached for the first time a copy of the note bearing- an undated blank' endorsement from IndyMac; and an allonge bearing an undated special endorsement from Grimal-di to IndyMac. ■

No evidence was presented at trial, either documentary or testimonial, that the blank endorsement from IndyMac was present on the back of the note attached to the initial complaint. Moreover, the analyst never testified as to when the endorsements were placed on the allonge or the original note, arid therefore did not provide any evidence that the endorsements predated the filing of the initial complaint or that appellee possessed the endorsed documents before it was filed. When specifically asked if appellee acquired the blank note prior to the filing of the initial complaint, the analyst responded:

There is no evidence to indicate to the contrary. I' mean it has always been part of the trust. This one has always been part of the trust...-.
... I believe our [business] records speak for themselves.... I don’t have specific documents that would say that, ■you know, when all of this stuff happened. I dori’t have that with me today.

Because neither the note attached to the initial complaint .in the appellate record nor the other documents in evidence prove that the blank endorsement from IndyMac was on the back of the fourth page of the note when the initial complaint was filed, this court cannot independently draw the conclusion that it was, in fact, there. We have held repeatedly that a party cannot establish standing after it has filed its initial complaint. See, e.g., 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 *547cannot be established ‘retroactively by acquiring standing to file a lawsuit after the fact.’ ” (quoting McLean, 79 So.3d at 173)).

Allowing documents attached' to an amended complaint which purport to prove standing to be given retroactive effect back to the date of original filing, as appel-lee urges us to do here, would be inimical to the requirements of pre-suit ownership for standing in foreclosure cases. See Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1286 (Fla. 2d DCA 2005) (stating that the “relation back” rule found in Florida Rule of Civil Procedure 1.190(c) “does not permit a party to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact”).

We have confirmed the well-settled principle that standing is acquired at the inception of the lawsuit in several opinions. As we stated in one recent ease under somewhat analogous facts:

Here, the Trust alleged standing as owner and holder of the note and mortgage in both the original and amended complaint. Because it ms not the original named payee, it had to prove possession of the original note endorsed in its favor or in blank before the filing of the original complaint. When the Trust filed the original complaint, it attached a copy of an unendorsed note payable to AWL. Although it later filed an original note and a copy of the original note, both of which had a blank endorsement, neither was dated. And, the Trust’s witness did not know when the endorsement was placed on the note.
From the sequence of these events, it is clear that the Trust did not have standing when it'filed the complaint in September '2007. Wright v. Deutsche Bank Nat’l Trust Co., 152 So.3d 1289 (Fla. 4th DCA 2015). The trial court erred in entering a final judgment of foreclosure in favor of the Trust.

Peoples v. Sami II Trust 2006-AR6, No. 4D14-2757, 178 So.3d 67, 69 (Fla. 4th DCA Oct. 14, 2015) (emphasis added).

Since there is no evidence to support appellee’s contention that the endorsements in question were on the allonge and the note prior to the inception of the lawsuit, or that appellee was in possession of these endorsed documents when the initial complaint was filed, appellee has failed to demonstrate that it had standing to bring this foreclosure suit.

Reversed.

DAMOORGIAN and LEVINE, JJ„ concur.


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Citator

Cited By

  • Vogel v. Wells Fargo Bank, N.A., 192 So. 3d 714 (Fla. 4th DCA 2016)
    …Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010). Therefore, to enforce a note endorsed in blank, a foreclosing party must show that they had possession of the note at the inc’eption of the lawsuit. Guzman v. Deutsche Bank Nat’l Trust Co., 179 So. 3d 543, 545-46 (Fla. 4th DCA 2015). Additionally, we-have held that in order to prove standing to foreclose based upon a merger, the surviving entity must prove that it “acquired all of [the absorbed entity’s] assets, including [the] note and mortgage, by…
  • Segall v. Wachovia Bank, 192 So. 3d 1241 (Fla. 4th DCA 2016)
    …identified person and may be negotiated only by the indorsement of that person.” Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1040 (Fla. 4th DCA 2015) (quoting § 673.2051(1), Fla. Stat. (2013)); see also Guzman v. Deutsche Bank Nat’l Trust Co., 179 So. 3d 543, 545 (Fla. 4th DCA 2015) (“For a plaintiff to qualify as a holder of a promissory note, the note must either list the plaintiff as the payee, or it ‘must bear a special endorsement in favor of the plaintiff or a blank endorsement.’” (quoting McLean…
  • Johnson v. Space Coast Credit Union, 184 So. 3d 1247 (Fla. 4th DCA 2016)
    …Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). When attempting “to enforce a note endorsed in blank, a foreclosing party must show that they had possession of the note at the inception of thé lawsuit.” Guzman v. Deutsche Bank Nat’l Trust Co., 179 So. 3d 543, 546 (Fla. 4th DCA 2015).2 Appellee argues that it had standing, to foreclose as the holder of the original note, and , because it was, authorized by the Bank to bring the action as the servi-cer. Assuming these claims are true, they still do not r…

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