Focht v. Wells Fargo Bank, N.A.
124 So. 3d 308
| Fla. Dist. Ct. App. | 2013Background
- In 2002 Focht executed an adjustable-rate note secured by a mortgage; original lender was BNC Mortgage, Inc.
- Wells Fargo (trustee for a mortgage-backed trust) filed foreclosure in Jan 2008, initially alleging a lost-note claim and later producing the original note in July 2008.
- Wells Fargo moved for summary judgment; Focht cross-moved and raised affirmative defenses including lack of standing.
- At hearing Wells Fargo dismissed the lost-note count and relied on a September 2008 assignment (post-filing) and/or possession of the original note endorsed in blank (produced post-filing) to establish standing.
- Trial court granted summary judgment for Wells Fargo and struck Focht’s lis pendens; foreclosure sale later occurred and Wells Fargo purchased the property.
- The appellate court reversed the final judgment because a genuine issue of material fact existed whether Wells Fargo had standing to enforce the note and mortgage at the time the complaint was filed; the subsequent appeal of orders re: sale was dismissed as moot.
Issues
| Issue | Plaintiff's Argument (Wells Fargo) | Defendant's Argument (Focht) | Held |
|---|---|---|---|
| Standing at time of filing | Had standing via assignment and as holder of original note endorsed in blank | Wells Fargo lacked standing when suit was filed; post-filing proofs insufficient | Reversed — genuine issue whether Wells Fargo had standing at filing; post-filing assignment/note insufficient to cure lack of standing at inception |
| Proof of possession of original note | Possession shown by later filing of original note endorsed in blank | No evidence Wells Fargo possessed the note at time of filing; endorsement not in the record as dated | Reversed — party must show possession of original note at time suit was filed to establish holder status |
| Lost-note claim vs. later production of note | Lost-note claim was dismissed once original note was produced | Focht argued initial complaint admitted note was lost and thus Wells Fargo disclaimed possession at filing | Reversed — inconsistency and lack of proof leave material factual dispute |
| Mootness of appeal re: stay/lis pendens and sale | N/A (Wells Fargo proceeded to sale) | Sale rendered appeals of stay/lis pendens moot | Dismissed as moot the appeal challenging the post-judgment orders because sale occurred |
Key Cases Cited
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170 (Fla. 4th DCA 2012) (plaintiff must establish standing as of filing)
- Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acq. Corp., 51 So.3d 1176 (Fla. 2d DCA 2010) (standing determined at inception of suit)
- Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251 (Fla. 2d DCA 2012) (post-filing assignment does not cure lack of standing at filing)
- Cutler v. U.S. Bank Nat’l Ass’n, 109 So.3d 224 (Fla. 2d DCA 2012) (reversal where plaintiff produced original note after filing but failed to show when it became holder)
- Everhome Mortg. Co. v. Janssen, 100 So.3d 1239 (Fla. 2d DCA 2012) (holder defined by possession of negotiable instrument)
- Green v. JPMorgan Chase Bank, N.A., 109 So.3d 1285 (Fla. 5th DCA 2013) (party must possess original endorsed note at filing to be a holder)
- Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281 (Fla. 2d DCA 2005) (standing at inception is prerequisite; acquisition after filing does not cure)