Assil v. Aurora Loan Services, LLC
171 So. 3d 226
| Fla. Dist. Ct. App. | 2015Background
- Nationstar Mortgage, LLC sues to foreclose a mortgage against the borrower; Aurora Loan Services, LLC filed the foreclosure action on August 25, 2008.
- Aurora alleged ownership or possession of the Note and that the Note was lost, then later amended to omit the lost-note claim and attach the Note with a special endorsement to Deutsche Bank.
- In later amendments, Aurora alleged it was a servicing agent authorized to prosecute the foreclosure on behalf of Deutsche Bank, rather than the owner or holder of the Note.
- At trial, Nationstar introduced evidence suggesting Deutsche Bank was the owner of the Note and relied on a printout showing a special endorsement to Deutsche Bank dated before filing.
- There was no evidence of an assignment of the mortgage and Note to Aurora, no endorsement in favor of Aurora, and no competent evidence that Aurora held the Note when suit was filed.
- The court reversed the foreclosure judgment and remanded for involuntary dismissal due to insufficient standing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Aurora have standing to foreclose when suit was filed? | Nationstar asserts Aurora was the holder or authorized to enforce the note. | Aurora contends it had standing as servicer with authority to prosecute on Deutsche Bank's behalf. | No standing proven; reversed and remanded for dismissal. |
| May substituted plaintiffs acquire standing from the original plaintiff? | Nationstar relies on substitution to claim standing. | Aurora and Nationstar argue standing requirements apply to the original filing, not just substitution. | Standing not established by record; substitution did not cure lack of standing. |
| What proof is required to show a party is the holder or entitled to enforce the Note? | Nationstar argues endorsement or possession suffices to prove holder status. | Aurora argues servicing rights and letters suffice to prove enforcement authority. | Insufficient evidence of holder status or enforceable rights; failure to prove enforceability. |
Key Cases Cited
- Vidal v. Liquidation Props., Inc., 104 So.3d 1274 (Fla. 4th DCA 2013) (standing to foreclose must be proven at filing)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (holder rights and endorsements determine enforcement rights)
- Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351 (Fla. 1st DCA 2014) (substitution of plaintiff transfers standing)
- Seffar v. Residential Credit Solutions, Inc., 160 So.3d 122 (Fla. 4th DCA 2015) (substituted plaintiff failed to prove original had standing)
- Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128 (Fla. 4th DCA 2014) (standing to sue reviewed de novo)