Andrew Tremblay, Heidi Tremblay and Mary Tremblay v. U.S. Bank, N.A.
164 So. 3d 85
| Fla. Dist. Ct. App. | 2015Background
- Homeowners challenge a final foreclosure judgment entered against them by Bank.
- Bank filed an unverified foreclosure complaint in July 2009 stating it was the holder of the note and mortgage.
- Mortgage identified Metrocities Mortgage as lender and MERS as mortgagee; note had a blank indorsement.
- Bank later filed an assignment of the note after filing the complaint, but before final judgment.
- At trial, Bank’s only witness testified the servicer PHH Mortgage, not Bank, held the note since August 2005 and did not present the PSA.
- Court reversed, holding Bank lacked standing at the time of filing and remanded for involuntary dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Bank have standing to foreclose when filed? | Tremblays argue Bank lacked standing. | Bank contends it became holder via assignment and note endorsement. | Bank lacked standing; reversed for involuntary dismissal. |
| Does an assignment after complaint confer standing at filing? | Assignment post-filing cannot retroactively confer standing. | Assignment supports standing if effective on filing date. | Assignment dated after filing did not confer standing. |
| Is there sufficient evidence that Bank was holder of the note at filing? | Evidence showed Bank as holder; note endorsed blank supports standing. | Servicer held the note; Bank failed to prove it was holder at filing. | Insufficient evidence of standing; reverse and remand for involuntary dismissal. |
Key Cases Cited
- Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So.3d 152 (Fla. 1st DCA 2014) (standing to foreclose evaluated de novo)
- Dixon v. Express Equity Lending Grp., LLLP, 125 So.3d 965 (Fla. 4th DCA 2013) (standing requires proof at filing)
- Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195 (Fla. 4th DCA 2012) (proper party to foreclose is holder or holder’s representative)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (standing evidenced by note/endorsement or affidavit)
- BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936 (Fla. 2d DCA 2010) (holder or holder’s representative may foreclose)
- Sosa v. U.S. Bank, N.A., 153 So.3d 950 (Fla. 4th DCA 2014) (foreclosure standing analysis)
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280 (Fla. 2d DCA 2014) (appellate review of standing sufficiency)
- Correa v. U.S. Bank N.A., 118 So.3d 952 (Fla. 2d DCA 2013) (standing proof requirements in foreclosure)