Kiefert v. Nationstar Mortgage, LLC
153 So. 3d 351
| Fla. Dist. Ct. App. | 2014Background
- Kieferts appeal a foreclosure judgment after a non-jury trial on standing grounds.
- Aurora Loan Services, LLC filed the original foreclosure action; Nationstar later substituted as plaintiff.
- Original complaint attached an unendorsed note payable to Lehman Brothers Bank, FSB.
- Amended complaint attached a note bearing endorsements making it bearer paper; the trial court allowed the amendment.
- Nationstar presented only testimony that Aurora possessed the note at filing; no pre-filing endorsement evidence was established.
- Court held Nationstar failed to prove Aurora had standing at the time the original complaint was filed, reversing the foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose by holder at filing | Nationstar argued it was successor holder; pre-filing endorsement showed standing. | Aurora lacked standing at filing due to lack of endorsed note; post-filing endorsements cannot cure. | Reversed; lack of standing at inception |
| Cure of standing by later endorsements or substitution | Endorsed note and substitution to Nationstar cured standing. | Cure cannot validate standing where original plaintiff lacked it. | Reversed; post-filing endorsements cannot cure |
| Effect of Rule 1.260 substitution on standing | Substitution transmits standing from original to substituted plaintiff. | If original lacked standing, substitution does not cure. | Cited but not dispositive; reversal due to initial lack of standing |
Key Cases Cited
- Lindsey v. Wells Fargo Bank, N.A., 139 So.3d 903 (Fla. 1st DCA 2013) (holder-to-foreclose requires standing to sue as of filing and at trial)
- Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (holder status requires both mortgage and note; pre-filing evidence)
- Focht v. Wells Fargo Bank, N.A., 124 So.3d 308 (Fla. 2d DCA 2013) (cures cannot validate standing after filing)
- Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195 (Fla. 4th DCA 2012) (standing must be shown as of filing; post-filing events insufficient)
- Ryan v. Wells Fargo Bank, N.A., 142 So.3d 974 (Fla. 4th DCA 2014) (endorsement timing affects standing)
- Olivera v. Bank of Am., N.A., 141 So.3d 770 (Fla. 2d DCA 2014) (original plaintiff lacking standing; substitution may not cure)
- Brandenburg v. Residential Credit Solutions, Inc., 137 So.3d 604 (Fla. 4th DCA 2014) (Rule 1.260 substitution doctrine on standing)
- Johns v. Gillian, 184 So.2d 140 (Fla. 1938) (ownership of mortgage follows note; early authority on lien chain)