McLean v. JP Morgan Chase Bank National Ass'n
79 So. 3d 170
| Fla. Dist. Ct. App. | 2012Background
- Chase filed a two-count foreclosure action against McLean in 2009, claiming Chase owned the Note and Mortgage and could enforce the loan documents.
- The mortgage attached to the complaint listed American Brokers Conduit as lender and MERS as the mortgagee.
- McLean moved to dismiss; the trial court denied but ordered Chase to produce an assignment showing standing; Chase filed an Assignment of Mortgage showing MERS assigned to Chase.
- The Assignment stated MERS assigned to Chase but was signed May 14, 2009, three days after filing the foreclosure complaint on May 11, 2009.
- Chase later filed the original note and mortgage; the note bore a special endorsement to Chase but the endorsement date and timing of ownership were not stated in the supporting affidavit.
- The trial court granted summary judgment for Chase; the appellate court reversed, finding Chase failed to prove standing at the time the lawsuit was filed and remanded for proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Chase have standing to foreclose when the complaint was filed? | Chase was the holder/owner via assignment or endorsement. | McLean argued Chase lacked standing at filing. | Standing must exist at filing; record failed to prove it. |
| Can a post-filing assignment cure lack of standing at filing? | Standing derived from assignment to Chase. | Standing must exist at inception; post-filing assignment cannot cure. | Record showed assignment after filing; remand required to determine timing of ownership. |
| Is an endorsement dated after filing sufficient to establish standing at filing? | Endorsement to Chase may establish standing. | Endorsement timing not shown to precede filing. | Pre-filing endorsement needed; lack thereof undermines standing at filing. |
| When may evidentiary hearing be required on standing? | Ambiguities on endorsement date should be resolved at hearing. | Disputed facts require an evidentiary proceeding. | An evidentiary hearing may be necessary if timing of endorsement/ownership is disputed. |
Key Cases Cited
- Lizio v. McCullom, 36 So.3d 927 (Fla.4th DCA 2010) (standing required at foreclosure filing)
- Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla.2d DCA 2010) (standing to foreclose when filed)
- Philogene v. ABN Amro Mortg. Group Inc., 948 So.2d 45 (Fla.4th DCA 2006) (standing via assignment or transfer)
- WM Specialty Mortg., LLC v. Salomon, 874 So.2d 680 (Fla.4th DCA 2004) (mortgage ownership follows debt, pre-filing transfer lowers barrier)
- Taylor v. Bayview Loan Servicing, LLC, 74 So.3d 1115 (Fla.2d DCA 2011) (standing may derive from pre-filing endorsement or affidavit)
- Kaminik v. Countrywide Home Loans, Inc., 64 So.3d 195 (Fla.4th DCA 2011) (tender of note with special endorsement affects standing)
- Salomon v. WM Specialty Mortg., LLC, 874 So.2d 682-83 (Fla.4th DCA 2004) (pre-filing interest can support standing where equitable transfer occurred)
- Jeff-Ray Corp. v. Jacobson, 566 So.2d 885 (Fla.4th DCA 1990) (assignment dated after filing cannot cure lack of standing)
- Progressive Exp. Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281 (Fla.2d DCA 2005) (standing must exist at inception of suit)
- Johns v. Gillian, 184 So. 140 (1938) (equitable transfer can vest title prior to formal assignment)