DARLENE ANGELINI AND S. JOSEPH ANGELINI, APPELLANTS,
v.
HSBC BANK USA, N.A., AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-HE4, ASSET BACKED PASS-THROUGH CERTIFICATES, APPELLEE
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In this foreclosure case, the Florida Fourth District Court of Appeal reversed the trial court's judgment for the bank, holding that the bank failed to establish standing to foreclose because it did not prove it held the note (i.e., had physical possession of a properly indorsed note) at the time the complaint was filed, despite proving it owned the note.
The bank failed to establish standing because it did not introduce evidence that it held the note when the complaint was filed. Holding a note requires physical possession of a blank-indorsed note, which is distinct from merely owning it. Standing must be established at the inception of the case and cannot be cured by acquiring the note after filing.
[1] A party seeking foreclosure must demonstrate standing at the time the complaint is filed.
[2] Standing to foreclose may be established by a plaintiff's status as the note holder.
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Join FLexlaw to unlock all legal intelligence“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose when the complaint is filed.”
Establishes the fundamental requirement that standing must exist at the time the complaint is filed, not thereafter.
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Join FLexlaw to unlock all legal intelligenceThe bank brought a foreclosure action and initially attached a copy of a note showing a different lender with no indorsements. At trial, the bank intr…
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This is a foreclosure case in which the Appellants, Darlene áñd S. Joseph Angeli-ni, argue that the Appellee (“the Bank”) failed to prove standing. Because we agree, the trial court’s decision must be reversed.
The Bank originally brought a lost note count along with its foreclosure count. The copy of the note attached to the complaint showed a different bank as the lender and bore no indorsements. The original note eventually introduced at trial (apparently after being found) had a blank in-dorsement. The Bank’s witness was unable to testify when the indorsement was placed on the note. However, when asked to “testify who owned the note on the date the complaint was filed,” he answered, “HSBC did.”
“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose” when the complaint is filed. McLean v. JP Morgan Chase Bank Nat'l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). “[S]tanding may be established from the plaintiffs status as the note holder....” Id. Although testimony can be sufficient to establish that a bank has standing to foreclose, the Bank here failed to introduce evidence that it held (through the possession of the blank-indorsed paper) the-note, as opposed to merely owned the note, when the foreclosure complaint was filed. Because the Bank proceeded as the holder rather than as a non-holder in possession, this error proves fatal to its case.
As Judge Conner stated in his concurring opinion in Rodriguez v. Wells Fargo Bank, N.A., 178 So.3d 62 (Fla. 4th DCA 2015), “ownership ... of the note is not the issue, with regards to standing, unless the note is not in bearer form or is payable to' someone or some entity other than the plaintiff filing suit.”1 Id. at 67 (Conner, J., concurring) (emphasis omitted). We adopt Judge Conner’s reasoning on this issue as our holding here. Put simply, a holder is not the same as an owner, and testimony as to identity of the latter is irrelevant to a determination of the former.
Because the Bank attempted to proceed as the holder of the note rather than as a non-holder in possession (a theory where the testimony regarding ownership may have been helpful to it), it was required to introduce evidence that it actually held the note at the time of filing. McLean, 79 So.3d at 173. Instead,' it simply introduced evidence that it was the owner. It would be perfectly consistent for the Bank to have been the owner of the note (the entity with an equitable interest) without being the holder (the. entity in possession of a blank-indorsed note). Indeed, the Florida Statutes contemplate such a possibility. See § 673.3011, Fla. Stat. .(2015); Rodriguez, 178 So.3d at 67 (Conner, J., concurring). However, “ownership, assignment, or transfer of the note is important to the analysis of standing only when the plaintiff is a nonholder in possession of the note with the rights of a holder.” Id. (emphasis added).
The Bank’s testimony did not establish the relevant fact:' that it held the note at the time the complaint was filed. *204Although the Bank clearly was the holder at the time it introduced the blank-indorsed note at trial, “[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.” LaFrance v. U.S. Bank Nat’l Ass’n, 141 So.3d 754, 756 (Fla. 4th DCA 2014) (internal quotation marks omitted).
For that reason, we reverse the decision below and remand for the entry of involuntary dismissal.
Reversed.
WARNER and TAYLOR, JJ., concur.
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Deutsche Bank Nat'l Tr. Co. v. Ari F. Marciano, 190 So. 3d 166 (Fla. 5th DCA 2016)…3d 44, 46 (Fla. 5th DCA 2015). ■ “ ‘A crucial element in any mortgage foreclosure proceeding is- that the party seeking foreclosure must- demonstrate that it has standing to foreclose,’ when the complaint is filed.” Angelini v. HSBC Bank USA, N.A., 189 So. 3d 202 (Fla. 4th DCA 2016) (quoting McLean v. JP Morgan Chase Bank Nat'l Ass’n, 79 So. 3d 170, 173. (Fla. 4th DCA 2012)). In Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 3d 1106 (Fla. 5th DCA 2015), we explained: The requirements for standing are p…
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Frost v. Christiana Tr., 193 So. 3d 1092 (Fla. 4th DCA 2016)…ting § 673.3011(2), Fla. Stat.). Ownership, assignment, or transfer of the note become important to the analysis of standing “when the plaintiff is a nonholder in possession of the note with the-rights, of a holder.” Angelini v. HSBC Bank USA, N.A., 189 So. 3d 202, 203 (Fla. 4th DCA 2016) (quoting Rodriguez v. Wells Fargo Bank, N.A., 178 So. 3d 62, 67 (Fla. 4th DCA 2015) (Conner, J., concurring)). Accordingly, “[a] bank employee’s trial testimony that the plaintiff bank owned the note before the inception of…
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Cortorreal-Poche v. Fed. Nat'l Mortg. Ass'n & Englewood Park Neighborhood Ass'n, Inc. (Fla. 5th DCA 2020)…lish Aurora as a holder of the note. Rather, “ownership, assignment, or transfer of the note is important to the analysis of standing only when the plaintiff is a nonholder in possession with the rights of a holder.” Angelini v. HSBC Bank USA, N.A., 189 So. 3d 202, 203 (Fla. 4th DCA 2016) (quoting Rodriguez, 178 So. 3d at 67 (Conner, J., concurring) (emphasis added)); see also Green v. Green Tree Servicing, LLC, 230 So. 3d 989, 990 (Fla. 5th DCA 2017) (“[A] person entitled to enforce the note and foreclose o…
Authorities Cited
- McLEAN v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012)
- Rodriguez v. Wells Fargo Bank, N.A., 178 So. 3d 62 (Fla. 4th DCA 2015)
- 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)