Rosanie Joseph v. BAC Home Loans Servicing, LP
155 So. 3d 444
Fla. Dist. Ct. App.2015Background
- Homeowner (Joseph) executed a note and mortgage to Key Mortgage Associates in 2008.
- Taylor, Bean & Whitaker (Taylor Bean) filed a foreclosure complaint on July 21, 2009, attaching the mortgage but not the note or any assignments; the complaint alleged Taylor Bean owned the note and sought to reestablish a lost note.
- Taylor Bean later transferred the note and mortgage to BAC Home Loans Servicing, LP (BAC), and BAC was substituted as plaintiff.
- At trial BAC produced the original note with two undated endorsements: one endorsing the note to Taylor Bean and a second blank endorsement signed by a Taylor Bean officer; no dated endorsements or mortgage assignments were introduced.
- BAC’s witness could not testify when the endorsements were made or when Taylor Bean acquired possession; homeowner moved for involuntary dismissal at close of plaintiff’s case arguing lack of standing.
- The trial court denied the motion and entered final judgment for BAC; the Fourth District reversed, holding BAC failed to prove standing as of the filing date and ordered dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose at the time the complaint was filed | Taylor Bean (and later BAC) argued it owned or had rights to enforce the note and mortgage when suit began | BAC argued Taylor Bean (as alleged owner or servicer) had enforceable rights, invoking negotiable-instrument enforcement and section 673.3011(2) (nonholder in possession) | Reversed: plaintiff failed to prove Taylor Bean had possession/ownership before filing; lacking proof of dated endorsement or assignment, standing not established at filing |
| Whether undated endorsements and post-filing assignment can cure initial lack of standing | Plaintiff contended endorsement and later assignment showed enforceable rights (or that service/possession sufficed) | Defendant relied on endorsements on the note and statutory nonholder-in-possession theory | Held: undated endorsements and lack of evidence of timing insufficient; post-filing transfer cannot establish standing at inception unless endorsement/assignment shown to predate filing |
Key Cases Cited
- McLean v. JP Morgan Chase Bank, 79 So. 3d 170 (Fla. 4th DCA 2012) (standing to foreclose determined at time of filing; endorsement/assignment must show holder status at filing)
- Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14 (Fla. 4th DCA 2012) (standing is a question of law reviewed de novo)