194 So. 3d 1097
Fla. Dist. Ct. App.2016Background
- Plaintiff: Aurora Loan Services, LLC (a servicer substituted in before trial) prosecuted a mortgage foreclosure against homeowner Robert J. Stoltz.
- Case was initiated by a different servicer (the original plaintiff) and later the second servicer took the case to trial as plaintiff in interest.
- Stoltz pleaded lack of standing at inception as an affirmative defense in an amended answer, placing standing at inception in dispute.
- At trial the second servicer offered the promissory note with an undated indorsement in blank and presented witness testimony that established the original servicer was servicing the loan when suit was filed.
- The second servicer did not admit into evidence an assignment attached to the complaint that purportedly transferred the note and mortgage to the original servicer before suit.
- Trial court entered a final judgment of foreclosure; the Second District reversed, holding plaintiff failed to prove standing at the time the complaint was filed and remanded with instructions to enter involuntary dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff proved standing at inception of suit | The servicer (second plaintiff) contended possession of the note at trial (indorsement in blank) established standing related back to filing | Stoltz argued plaintiff must prove that the original servicer held the note when suit was filed because standing at inception was pleaded | Reversed — plaintiff failed to prove standing at inception; involuntary dismissal required |
| Whether an undated indorsement and witness testimony sufficed to prove standing at filing | Undated indorsement in blank plus testimony that original servicer was servicing the loan established holder status | Stoltz maintained servicing status is not equivalent to possession of the note at filing; proof of actual possession or authenticated assignment required | Held insufficient: indorsement undated and not attached to complaint, and testimony showed only servicing, not possession; assignment in court file was not admitted, so it could not supply standing |
Key Cases Cited
- Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639 (Fla. 2d DCA 2015) (party must prove standing at inception when standing is placed in issue)
- Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (note with blank endorsement is evidence that holder in possession is the note's holder)
- May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014) (failure to prove standing at filing requires dismissal)
- Beaumont v. Bank of N.Y. Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012) (assignment in court file not competent where never authenticated or admitted into evidence)