ROBERT J. STOLTZ, APPELLANT,
v.
AURORA LOAN SERVICES, LLC; NATIONSTAR MORTGAGE, LCC; HERITAGE BAY UMBRELLA ASSOCIATION, INC.; THE QUARRY COMMUNITY ASSOCIATION, INC.; LORETTA M. STOLTZ; ROBERT B. STOLTZ; UNKNOWN TENANT N/K/A JUSTIN STOLTZ, APPELLEES

Fla. 2d DCA | 2016-07-06
No. 2D15-1095
VILLANTI, C.J., and CRENSHAW, J., Concur.
194 So. 3d 1097 Florida District Court of Appeal, Second District (2016) Positive Treatment
Cited by 5 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

The court reversed a foreclosure judgment because the mortgage servicer failed to prove it held the promissory note when the case was originally filed, despite later substituting as plaintiff. A document in the court file could have established standing at inception, but the servicer failed to introduce it as evidence at trial.


Holding

The second servicer failed to prove standing at inception because the undated indorsement in blank without evidence of possession at the time of filing was insufficient, and representative testimony only established that the first servicer was servicing the mortgage, not that it held the note. The assignment document in the complaint file could have proven standing, but it was never authenticated or offered as evidence at trial.


Headnotes

[1] A plaintiff in a foreclosure action must prove standing at the inception of the case, not just at the time of trial.

[2] To establish standing at inception, a plaintiff must demonstrate possession of the note when the complaint was filed.

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Key Quotes

“For better or for worse, it is settled that it is not enough for the plaintiff to prove that it has standing when the case is tried; it must also prove that it had standing when the complaint was filed.”

Establishes the controlling legal principle that standing must exist at inception of the suit, not just at trial.

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Facts & Procedural History

A mortgage servicer filed a foreclosure action against homeowner Robert Stoltz, asserting it was the holder of the note. A different servicer was late…

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Opinion of the Court
SALARIO, Judge.

SALARIO, Judge.

We are again required to reverse a final judgment of foreclosure because of the plaintiffs failure to prove at trial the existence of standing at inception of the case. See Dickson v. Roseville Props., LLC, 198 So.3d 48, 40 Fla. L. Weekly D2520, 2015 WL 6777155 (Fla. 2d DCA Nov. 6, 2015) (“For better or for worse, it is settled that it is not enough for the plaintiff to prove that it has standing when the case is tried; it must also prove that it had standing when the complaint was filed.”).

In this instance, a mortgage servi-cer filed suit against the borrower and homeowner, Robert Stoltz, and a different servicer was substituted as plaintiff prior to trial. The action was commenced and maintained on the theory that the servi-cers were the holders of the note at issue, not on the theory that the servicers were authorized to foreclose on behalf of a holder. Mr. Stoltz placed the question of standing at inception at issue by pleading it as an affirmative defense in an amended answer. To satisfy the requirement of standing at inception, therefore, the second servicer (the one that took the case to trial) was required to prove at trial that the first servicer (the one that filed the suit) held the note when the case was filed. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015).

At the trial, the second servicer attempted to meet this burden by offering a note bearing an undated indorsement in blank. An indorsement in blank is sufficient to prove that the person in possession of the note is its holder. Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). Because the indorsement in this case was undated and was not attached to the original complaint, however, it was insufficient to prove that the first servicer held the note at the inception of the case absent additional evidence that the first servicer actually possessed the note at the inception of the case. See Sorrell v. U.S. Bank Nat’l Ass’n, — So.3d -, 41 Fla. L. Weekly D847, 2016 WL 1360758 (Fla. 2d DCA Apr. 6, 2016). The only additional evidence the second servicer presented was the testimony of its representative. That testimony established at most that the first servicer was in fact servicing the mortgage when it filed suit, not that the first servicer held the note when it filed suit. For that reason, the second servicer failed to carry its burden of proving standing at inception, and the borrower’s motion for involuntary dismissal, made at the close of the second servicer’s case at trial, should have been granted. See Russell, 163 So.3d at 643; May v. PHH Mortg. Corp., 150 So.3d 247, 249 (Fla. 2d DCA 2014).

We observe that the operative complaint attaches a copy of an assignment purporting to transfer both the note and mortgage *1099to the first servicer prior to the date suit was originally filed. That document might have proved that the first servicer had standing at inception. See Focht, 124 So.3d at 310 (“A plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiffs status as the holder of the note.”). The second ser-vicer, however, made no effort to have this document admitted into evidence at trial. On appeal, no argument is made or authority cited that, notwithstanding that failure, the assignment is sufficient to support the judgment when standing is- contested at trial. See Beaumont v. Bank of N.Y. Mellon, 81 So.3d 553, 555 n. 2 (Fla. 5th DCA 2012) (noting that a copy of an assignment of a nóte in the court file was not competent evidence where it was never authenticated and offered into evidence). ■

We reverse the final judgment and remand the case to the trial court with instructions to enter an order of involuntary dismissal.

VILLANTI, C.J., and CRENSHAW, J., Concur.


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Citator

Cited By

  • Johnson v. Deutsche Bank Tr. Co., 248 So. 3d 1205 (Fla. 2d DCA 2018)
    …ote" and remarking that "[t]he only testimony as to possession of the note suggests that Wells Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to the filing of the complaint"); Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (finding second servicer's representative's testimony was insufficient to prove first servicer's standing at time of inception of suit because "[t]hat testimony established at most that the first servicer was in fact serv…
  • Verizzo v. The Bank OF NEW York Mellon, 220 So. 3d 1262 (Fla. 2d DCA 2017)
    …SALARIO, Judge.. We are again required to reverse a final judgment of foreclosure because of the plaintiffs failure to prove at trial the existence of standing at the inception of the case. See Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (“We are again-required to reverse a final judgment of foreclosure because of the plaintiffs failure to prove .at trial the existence of standing at inception of .the case.”). We remand for entry of an order of involuntary d…

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