Craig D. Lamb v. Nationstar Mortgage, LLC
174 So. 3d 1039
Fla. Dist. Ct. App.2015Background
- Homeowner Craig D. Lamb appealed a final judgment of foreclosure entered for Nationstar Mortgage, LLC.
- The foreclosure suit was originally filed by Aurora Loan Services, LLC; the note attached to the complaint bore a special indorsement payable to Aurora.
- Nationstar filed and obtained a court order substituting it as plaintiff, attaching an assignment of the mortgage from Aurora (but not an assignment of the note).
- At trial Nationstar’s witness testified generally that Nationstar acquired Aurora and services Aurora loans, but did not testify that Nationstar acquired this specific note or that the indorsement was transferred.
- The original note was lost; the copy in evidence retained the special indorsement to Aurora.
- The trial court found Nationstar had standing; the Fourth District reversed, concluding Nationstar failed to prove standing to enforce the note at the time of judgment and ordered involuntary dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff (Nationstar) had standing to enforce a note specially indorsed to Aurora | Nationstar argued it acquired Aurora and thus acquired the loan portfolio, supporting substitution and prosecution of the foreclosure | Lamb argued the note was specially indorsed to Aurora and Nationstar produced no evidence transferring that specific note or an affidavit of ownership | Reversed: Nationstar failed to prove standing to enforce the note at entry of final judgment; foreclosure judgment vacated and case dismissed |
| Whether an assignment of mortgage alone suffices to prove standing to foreclose when the note is specially indorsed to another | Nationstar relied on the assignment of the mortgage and the substitution order as proof of its rights | Lamb contended assignment of mortgage alone does not transfer the debt when the note remains indorsed to a different payee | Held: Assignment of mortgage alone is insufficient; plaintiff must show it holds the note (assignment of note, purchase evidence, effective transfer, or affidavit/ownership testimony) |
Key Cases Cited
- Dixon v. Express Equity Lending Grp., LLLP, 125 So. 3d 965 (Fla. 4th DCA 2013) (standing to foreclose must be shown at filing and judgment)
- Sosa v. U.S. Bank Nat'l Ass'n, 153 So. 3d 950 (Fla. 4th DCA 2014) (witness ownership testimony can substitute for affidavit of ownership)
- Stone v. BankUnited, 115 So. 3d 411 (Fla. 2d DCA 2013) (must prove assignment, purchase, or effective transfer to enforce a note specially indorsed to another)
- Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195 (Fla. 4th DCA 2012) (plaintiff must submit note bearing special indorsement, assignment, or affidavit of ownership)
- Tilus v. AS Michai LLC, 161 So. 3d 1284 (Fla. 4th DCA 2015) (assignment of mortgage without assignment of the debt conveys no right to enforce the note)