191 So. 3d 987
Fla. Dist. Ct. App.2016Background
- Eugene and Laura Rosa defaulted on their mortgage in January 2009; Deutsche Bank (not the original lender) filed foreclosure in April 2009.
- Deutsche Bank later filed the original mortgage and note with an undated, blank endorsement and amended to drop a lost-note count.
- At bench trial Deutsche Bank called the Rosas and a Wells Fargo loan verification analyst (Wells Fargo was servicer).
- The Wells Fargo witness testified Wells Fargo began servicing in July 2006 and customarily obtained the original note when boarding loans, but could not testify that Deutsche Bank had acquired the note or possessed it when the complaint was filed.
- Deutsche Bank asserted standing as holder of a note endorsed in blank but produced no evidence it possessed the original note at the time of filing or that Wells Fargo held the note as its agent.
- Trial court entered a final judgment of foreclosure; the Second District reversed for lack of standing and directed involuntary dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose when suit was filed | Deutsche Bank argued it was holder of the note endorsed in blank and thus had standing | Rosas argued Deutsche Bank lacked physical possession of the original note at filing | Court held Deutsche Bank failed to prove it possessed the original note at filing and thus lacked standing |
| Whether possession by servicer (Wells Fargo) established plaintiff's standing | Deutsche Bank implicitly relied on evidence about the servicer's possession/boarding practices | Rosas argued servicer possession did not prove Deutsche Bank's possession or agency relationship | Court held no testimony established Wells Fargo held the note as Deutsche Bank's agent or that Deutsche Bank had constructive possession |
| Whether amendment/dropping lost-note count cured standing defect | Deutsche Bank amended complaint after filing the note with blank endorsement | Rosas challenged standing to both original and amended complaints | Court held amendment did not cure lack of standing because possession at time of initial filing was not proven |
| Appropriate remedy for lack of standing | Deutsche Bank sought foreclosure judgment | Rosas sought dismissal | Court reversed and remanded with instruction to enter involuntary dismissal |
Key Cases Cited
- May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014) (plaintiff must have standing to foreclose at time complaint filed)
- McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170 (Fla. 4th DCA 2012) (standing requires proof at filing)
- Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014) (holder claiming endorsement in blank must show possession of original note endorsed in blank)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (possession of original note is required to establish holder status)
- Calvo v. U.S. Bank Nat'l Ass'n, 181 So. 3d 562 (Fla. 4th DCA 2015) (if relying on a blank indorsement, plaintiff must possess the original note when complaint filed)