210 So. 3d 691
Fla. Dist. Ct. App.2016Background
- Borrower executed note and mortgage in 2005 and defaulted in 2009; bank filed foreclosure in 2009 alleging it owned and held the note and mortgage.
- The note attached to the original complaint was payable to the original lender and lacked endorsements; bank later filed an amended complaint attaching an allonge with an undated blank endorsement.
- Bank’s servicer loan analyst testified the loan was transferred into the bank’s trust in 2005 and the servicer began collecting payments for the trust in 2006; a welcome letter and payment history were admitted without objection.
- Bank introduced a 2005 pooling and servicing agreement (PSA) and corresponding mortgage loan schedule showing the borrower’s loan was included in the trust; the PSA named the bank as trustee and provided for conveyance of original notes endorsed to the trustee.
- Trial court entered final foreclosure judgment for the bank; borrower appealed arguing insufficient evidence of bank’s standing at the time the original complaint was filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did plaintiff have standing to foreclose at the time it filed the original complaint? | Bank: PSA, loan schedule, servicer testimony, payment history and later-produced allonge show bank owned/held the note when suit began. | Borrower: Original complaint attached an unendorsed note; the later allonge is undated and witness could not verify when endorsement occurred, so standing at filing was not proved. | Affirmed for bank: PSA + mortgage loan schedule + servicer evidence sufficed to show bank owned/held the note at filing. |
Key Cases Cited
- Lewis v. U.S. Bank Nat’l Ass’n, 188 So.3d 46 (Fla. 4th DCA 2016) (held reliance on PSA insufficient to prove standing where PSA did not demonstrably include the loan at issue)
- Deutsche Bank Nat’l Trust Co. v. Marciano, 190 So.3d 166 (Fla. 5th DCA 2016) (PSA language and loan schedule can show plaintiff possessed the note before complaint filing)
- Caraccia v. U.S. Bank, Nat. Ass’n, 185 So.3d 1277 (Fla. 4th DCA 2016) (appellate review of standing to sue in foreclosure is de novo)
- Schmidt v. Deutsche Bank, 170 So.3d 938 (Fla. 5th DCA 2015) (discussed in context of PSA evidence and standing)