KRISHNA KUMAR AND ANUPAMA KUMAR, APPELLANTS,
v.
U.S. BANK, N.A., SUCCESSOR TRUSTEE TO BANK OF AMERICA, NA, SUCCESSOR IN INTEREST TO LASALLE BANK, NA, AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE WASHINGTON MUTUAL MORTGAGE, ETC., ET AL., APPELLEES

Fla. 5th DCA | 2017-07-07
No. Case No. 5D16-2889
COHEN, C.J. and WALLIS, JJ., concur.
225 So. 3d 888 Florida District Court of Appeal, Fifth District (2017)

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Holding

A party seeking to foreclose a mortgage must establish standing at the time the complaint is filed, which requires proof that any indorsement on the note occurred before the complaint was filed if the indorsement is undated.


Headnotes

[1] A party seeking to foreclose a mortgage must establish standing at the time the complaint is filed.

[2] When standing is asserted based on an undated indorsement of a note, the plaintiff must demonstrate through additional evidence that the indorsement occurred before the c…

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Facts & Procedural History

Borrowers defaulted on a mortgage loan. The successor trustee filed a foreclosure action, alleging ownership of the note but not physically possessing…

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Opinion of the Court
ORFINGER, J.

ORFINGER, J.

Krishna and Anupama Kumar appeal a final judgment of foreclosure entered in favor of U.S. Bank, N.A., successor in interest to LaSalle- Bank, N.A, as trustee for the holders of the Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2007-2 (collectively, “the Trustee”), after a bench trial. Because we find that the Trustee failed to prove it had standing at the inception of the foreclosure action, we reverse.1

The Kumars executed a promissory note in favor of Amnet Mortgage, Inc., d/b/a American Mortgage Network of Florida, secured by a mortgage. After the Kumars defaulted on the loan, the Trustee filed a two-count complaint seeking to reestablish the note and foreclose the mortgage. The Trustee did not attach a copy of the note to the complaint, but alleged that it- was the “owner of said note,” although it no longer physically possessed the note, which was lost. The Kumars answered and raised various affirmative defenses, including the defense that the Trustee lacked standing to foreclose. Several years later, the Trustee filed the original note with an attached allonge containing an undated in-dorsement from Amnet to Washington Mutual. At the subsequent bench trial, a representative of the Trustee’s current loan servicer admitted that she did not know when the undated indorsement was placed on the note. Nor did the Trustee present testimony from any other witnesses or any evidence as to the date of the indorsement.

A party suing to foreclose a mortgage must establish that it has *890standing at the time the complaint is filed. Corrigan v. Bank of Am., N.A., 189 So.3d 187, 189 (Fla. 2d DCA 2016) (en banc). The Trustee asserted in its complaint and at the bench trial that it was the owner and holder of the note; To be a holder, the instrument must be payable to the person in possession or indorsed in blank. See § 671.201(5), (21), Fla. Stat. (2009). “If the note does not name the plaintiff as the payee, the note must bear a special [indorsement in favor of the plaintiff or a blank [indorsement.” McLean v. JP Morgan Chase Bank Nat'l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). When a plaintiff asserts standing based on an undated indorsement of the note, it must demonstrate that the in-dorsement occurred before the complaint was filed through additional evidence, Lloyd v. Bank of N.Y. Mellon, 160 So.3d 513, 515 (Fla. 4th DCA 2015).

Here, although the Trustee eventually filed the original note with the court, the attached allonge indorsing the note to Washington Mutual was undated and the Trustee did not provide any evidence indicating when the special indorsement was placed on the note. As such, the Trustee failed to show it had standing to foreclose at the inception of the lawsuit.2 See Schmidt v. Deutsche Bank, 170 So.3d 938, 941 (Fla. 5th DCA 2015) (holding that trustee failed to prove it was holder of note and allonge at time it filed foreclosure complaint to establish standing where original complaint included count to reestablish lost note that specifically alleged trustee did not physically possess note, and trustee’s only witness had no personal knowledge as to when trustee came into possession of note and allonge); Wright v. Deutsche Bank Nat'l Tr. Co., 152 So.3d 1289, 1289 (Fla. 4th DCA 2015) (holding that bank did not establish standing at time it filed complaint 'as copy of note attached to complaint listed different bank as lender, original note introduced into evidence contained indorsement to bank but witness did not know when undated indorsement was placed on note, and no other evidence was presented as to date of indorsement); McLean, 79 So.3d at 174 (finding that there was insufficient evidence to establish standing when original note, submitted after bank filed its foreclosure complaint, contained undated special indorsement).

*891Because the Trustee failed to establish standing at the time the complaint was filed, we reverse and remand for entry of an order of involuntary dismissal. See May v. PHH Mortg. Corp., 150 So.3d 247, 249 (Fla. 2d DCA 2014) (reversing final judgment and finding that bank’s failure to prove prima facie case warranted dismissal, as “none of the evidence adduced at trial demonstrated when, if at all, the bank came into possession of the note”).'

.REVERSED AND REMANDED with instructions.

COHEN, C.J. and WALLIS, JJ., concur.


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