Corrigan v. Bank of America, N.A.
2016 Fla. App. LEXIS 1543
| Fla. Dist. Ct. App. | 2016Background
- The Corrigans executed a note and mortgage on May 24, 2008; Countrywide Bank, FSB was the original lender.
- Countrywide Home Loans Servicing, LP filed the foreclosure complaint Dec. 11, 2008 attaching the mortgage and payment ledger but not the note.
- The original note (with an undated blank endorsement) was not filed until May 6, 2011; an assignment of the mortgage to Bank of America was dated Dec. 15, 2011.
- Bank of America (successor to BAC/Countrywide entities) dismissed the lost-note count and filed an amended complaint attaching the endorsed note and assignment.
- At bench trial the bank produced business-record testimony and the loan documents, but presented no evidence that the endorsed note was possessed by the plaintiff or its predecessors at the time the original complaint was filed.
- Trial court entered final judgment for Bank of America; the Second District (en banc) reversed, holding the plaintiff failed to prove standing as of the original complaint date and receding from AS Lily to the extent it suggested standing can be established at the amended-complaint stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose as of filing | Bank of America argued possession of the original endorsed note filed later and possession at trial sufficed | Corrigans argued plaintiff (and predecessors) lacked possession of the endorsed note when original complaint was filed, so no standing at inception | Reversed: plaintiff failed to prove standing at the time the original complaint was filed; subsequent possession/assignment cannot cure lack of standing at inception |
| Whether standing may be established as of an amended complaint | Bank of America relied on AS Lily to say standing can be shown when amended complaint is filed | Corrigans maintained standing must exist at the initial complaint filing | Court receded from AS Lily to the extent it allowed standing to be established at amended-complaint stage; standing must be shown as of original filing |
| Evidentiary sufficiency to prove standing at inception | Bank said filing the note later and presenting it at trial showed entitlement to enforce | Corrigans said no proof when suit began; undated endorsement and assignment dated after filing produced ambiguity | Held that later-filed copy/original note with undated endorsement or assignment dated after filing does not establish standing at inception |
| Effect of substitution/successor plaintiff | Bank contended successor acquired rights and could assert standing it held by trial | Corrigans argued substituted plaintiff only has standing of original plaintiff at inception | Court held a substituted plaintiff acquires only the original plaintiff’s standing; subsequent acquisition cannot retroactively cure lack of inception standing |
Key Cases Cited
- AS Lily LLC v. Morgan, 164 So.3d 124 (Fla. 2d DCA 2015) (panel decision addressing standing at amended-complaint stage; court here recedes from it to the extent it suggests standing may be established at amendment)
- Russell v. Aurora Loan Servs., LLC, 163 So.3d 639 (Fla. 2d DCA 2015) (plaintiff must prove holder status both at filing and at trial; substituted plaintiff inherits original plaintiff’s standing)
- Ham v. Nationstar Mortg., LLC, 164 So.3d 714 (Fla. 1st DCA 2015) (reversal where plaintiff could not show standing at time original complaint was filed)
- Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351 (Fla. 1st DCA 2014) (standing must be shown at filing)
- Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So.3d 1222 (Fla. 2d DCA 2014) (filing the note with the original complaint would have been sufficient to show standing)
- May v. PHH Mortg. Corp., 150 So.3d 247 (Fla. 2d DCA 2014) (a later-filed copy of the note with endorsement does not prove standing at time complaint was filed)
- Focht v. Wells Fargo Bank, N.A., 124 So.3d 308 (Fla. 2d DCA 2013) (standing must be shown at time complaint is filed)
- Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010) (possession of original note indorsed in blank establishes holder status under UCC)