Wilmington Savings Fund Society, FSB v. Louissaint
212 So. 3d 473
| Fla. Dist. Ct. App. | 2017Background
- In 2007 Louissaint executed a mortgage and promissory note in favor of SunTrust, with MERS as nominee.
- The mortgage was assigned several times, ultimately from SunTrust to Wilmington Savings Fund Society, FSB (the Bank) on February 8, 2013; that assignment covered only the mortgage, not the note.
- Bank filed foreclosure in January 2014 and included a lost-note count; a copy of the note with a blank (indorsement) endorsement was attached to the complaint.
- Louissaint defended, arguing Bank lacked standing because it did not possess the original note when the suit was filed and the mortgage assignment did not transfer the debt.
- After locating the original note (which bore a blank indorsement), Bank dropped the lost-note count and introduced assignments, a mortgage-loan purchase agreement, and an assignment-assumption/recognition agreement showing the loan’s path to Bank.
- The trial court dismissed the foreclosure for lack of standing; the Fifth District reversed and remanded for entry of final judgment of foreclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had standing to foreclose at the time the complaint was filed | Bank claimed it properly pursued a lost-note reestablishment and attached a copy of the note with a blank indorsement; later produced the original and showed transactional documents evidencing transfer to Bank | Louissaint argued Bank lacked standing because it did not possess the original note when suit was filed and the mortgage assignment did not transfer the note/debt | Reversed. Bank established standing: a lost-note count plus a copy of the indorsed note with later production of the original and supporting assignment/purchase documents sufficed to show standing at some point and supported the complaint’s filing |
| Whether an assignment of the mortgage alone grants foreclosure rights | Bank relied on the copy/original note, lost-note procedure, and contemporaneous purchase/assignment documents to show rights in the note as well as the mortgage | Louissaint argued mortgage assignment without assignment of the note/debt does not confer foreclosure rights | The court acknowledged that an assignment of mortgage alone is insufficient, but held Bank relied on more than just the mortgage assignment (note copy/original, purchase agreement, assignment-recognition agreement), so Bank met the evidentiary threshold for standing |
Key Cases Cited
- Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA) (standard of review for involuntary dismissal)
- Schmidt v. Deutsche Bank, 170 So. 3d 938 (Fla. 5th DCA) (plaintiff must prove standing to foreclose at time of filing)
- Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44 (Fla. 5th DCA) (persons entitled to enforce note include holder, non-holder in possession with rights of holder, or person entitled under statute)
- Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320 (Fla. 5th DCA) (party need not be both owner and holder to have standing)
- Snyder v. JP Morgan Chase Bank, N.A., 169 So. 3d 1270 (Fla. 4th DCA) (owner may enforce only when in possession unless instrument is lost/destroyed and lost-note procedures invoked)
- Mortg. Elec. Registration Sys., Inc. v. Revoredo, 955 So. 2d 33 (Fla. 3d DCA) (remand with instructions to foreclose)
- Ortiz v. PNC Bank, N.A., 188 So. 3d 923 (Fla. 4th DCA) (lost-note/original-note production can cure standing defects alleged at filing)
- Clay Cty. Land Tr. v. JPMorgan Chase Bank, N.A., 152 So. 3d 83 (Fla. 1st DCA) (evidentiary showing required to link note/mortgage to purchase agreement)
- Bristol v. Wells Fargo Bank, N.A., 137 So. 3d 1130 (Fla. 4th DCA) (assignment of mortgage without assignment of debt creates no right in assignee)