Elston/Leetsdale, LLC v. CWCapital Asset Management LLC
87 So. 3d 14
| Fla. Dist. Ct. App. | 2012Background
- Elston appeals a non-final order requiring it to pay CW during foreclosure pendency; CW acts as special servicer for the trust and sought to enforce the loan proceedings.
- CW filed foreclosure in its own name alleging the trust defaulted; it claimed standing as agent/special servicer authorized by the trust.
- The loan chain runs: First Union National Bank to Morgan Guaranty Trust, then to State Street Bank as Trustee for the 2001-C1BC1 trust, which currently owns the loan documents.
- Trial court ordered Elston to pay CW $42,404.91 per month during pendency; Elston moved to dismiss for lack of standing.
- CW did not submit evidence/affidavits supporting authorization by the trust; the complaint was verified by CW’s SVP, not by the real party in interest; standing issues unresolved by record.
- Court affirmed the trial court on CW’s lack of need to register as a commercial collection agency or mortgage broker; reversed and remanded on standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose by a servicer | CW, as special servicer, is authorized to sue for the trust. | Elston argues CW lacks authorization to sue for the trust; no proper evidence. | CW lacked standing due to no evidence of authorization. |
| Need for registration as collection agency or mortgage broker | CW should not be barred by registration requirements. | CW did not register; requirement should apply. | Trial court correctly held no registration requirement applied. |
Key Cases Cited
- Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178 (Fla. 3d DCA 1985) (standing requires real party in interest or representation; broad standing)
- Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151 (Fla. 2d DCA 2007) (standing in mortgage foreclosure broader than mere ownership)
- Juega v. Davidson, 8 So.3d 488 (Fla. 3d DCA 2009) (agent with full authority can have standing if real party files affidavit ratifying actions)
- CWCapital Asset Mgmt., LLC v. Chicago Properties, LLC, 610 F.3d 497 (7th Cir. 2010) (special servicer standing when trustee joins/ratifies action)
- FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905 (Fla. 4th DCA 2010) (standing review/de novo; general framework for standing)