Shawn Boyd v. Wells Fargo Bank

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014

SHAWN BOYD,
Appellant,

v.

WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE
MORTGAGE LOAN TRUST 2006-1 ASSET-BACKED CERTIFICATES
SERIES 2006-1; MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., AS NOMINEE FOR HOME LOAN CENTER, INC., D/B/A
LENDING TREE LOANS; STEPHEN G. BOYD A/K/A STEPHAN G.
BOYD; JOHN DOE; JANE DOE, AS UNKNOWN TENANT(S) IN
POSSESSION OF THE SUBJECT PROPERTY,
Appellees.

No. 4D13-208

[August 6, 2014]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana Lewis, Judge; L.T. Case No. 502008CA003564
XXXXMB.

Russell L. Akins of Jeffrey A. Smith Law Group, Stuart, for appellant.

K. Denise Haire and Michael A. Rodriguez of Blank Rome LLP, Boca
Raton, for appellee Wells Fargo Bank, N.A.

STEVENSON, J.

Shawn Boyd appeals from a final judgment of foreclosure. Because
Wells Fargo failed to prove it had standing at the time it filed its foreclosure
complaint, we reverse.

Wells Fargo filed its foreclosure complaint in February of 2008.
Attached to this complaint was a mortgage showing DCS Mortgage, Inc.,
as the lender. DCS Mortgage then assigned the mortgage to Option One.
Nowhere in the record is there an indication that Option One assigned the
mortgage to Wells Fargo.

A de novo standard of review applies when reviewing whether a party
has standing to bring an action. Dixon v. Express Equity Lending Grp.,
LLLP, 125 So. 3d 965, 967 (Fla. 4th DCA 2013) (citing Westport Recovery
Corp. v. Midas, 954 So. 2d 750, 752 (Fla. 4th DCA 2007)).

“‘The party seeking foreclosure must present evidence that it owns and
holds the note and mortgage in question in order to proceed with a
foreclosure action.’” Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105,
1107 (Fla. 4th DCA 2010) (quoting Lizio v. McCullom, 36 So. 3d 927, 929
(Fla. 4th DCA 2010)). To satisfy this burden, Wells Fargo was required to
submit either “the note bearing a special endorsement in favor of the
plaintiff, an assignment from payee to the plaintiff or an affidavit of
ownership proving its status as holder of the note.” Rigby v. Wells Fargo
Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (citing Servedio, 46
So. 3d at 1107).

Here, Wells Fargo has provided no documentation which establishes
that it had standing at the time it filed the foreclosure complaint. See
Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75
So. 3d 773, 776 (Fla. 4th DCA 2011) (“A party must have standing to file
suit at its inception and may not remedy this defect by subsequently
obtaining standing.”). Although Wells Fargo eventually did file an Allonge
to Note bearing a special endorsement in favor of it, the Allonge itself
contains no date. See Rigby, 84 So. 3d at 1196 (“The Bank has not shown
that it was holder of the note at the time the complaint was filed. The note
containing a special endorsement in favor of Bank was not dated.”).
Moreover, Wells Fargo was apparently never assigned the mortgage and
the note. The only assignment in the record is from DCS to Option One.
Finally, Wells Fargo did not submit “an affidavit of ownership proving its
status as holder of the note.” Id. (citing Servedio, 46 So. 3d at 1107).

Accordingly, we reverse the final judgment of foreclosure.

Reversed.

CIKLIN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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