DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALVA SOSA and ALEX AMADOR,
Appellants,
v.
U.S. BANK NATIONAL ASSOCIATION,
Appellee.
No. 4D13-1657
[December 10, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard H. Harrison, Judge; L.T. Case No.
502008CA035877.
Andrea H. Duenas of the Law Office of A. Duenas, P.A., Lantana, for
appellants.
Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham,
Alabama, for appellee.
STEVENSON, J.
Alva Sosa and Alex Amador (“Homeowners”) appeal from a final
judgment of foreclosure. U.S. Bank National Association (“Bank”) is the
appellee. Finding the trial court erred in determining Bank had standing
to initiate the foreclosure action, we reverse.
Facts
Bank filed its foreclosure complaint in November 2008. It attached to
this complaint a copy of the mortgage but not a copy of the note, as Bank
was originally seeking to enforce a lost note. Homeowners answered and
raised lack of standing as an affirmative defense. The case proceeded to
trial where, through the testimony of Bank’s one witness, the original
promissory note was submitted into evidence, and final judgment was
entered in favor of Bank.
Analysis
“We review the sufficiency of the evidence to prove standing to bring a
foreclosure action de novo.” Lacombe v. Deutsche Bank Nat’l Trust Co., 39
Fla. L. Weekly D2156, D2157 (Fla. 1st DCA Oct. 14, 2014) (citing Dixon v.
Express Equity Lending Grp., LLLP, 125 So. 3d 965 (Fla. 4th DCA 2013)).
“[T]he plaintiff must prove that it had standing to foreclose when the
complaint was filed.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 173 (Fla. 4th DCA 2012). Relevant here, “[w]here the plaintiff
contends that its standing to foreclose derives from an endorsement of the
note, the plaintiff must show that the endorsement occurred prior to the
inception of the lawsuit.” Id. at 174. A plaintiff can establish standing
through an affidavit of ownership, wherein standing is established “if the
body of the affidavit indicates that the plaintiff was the owner of the note
and mortgage before suit was filed.” Id. A witness who testifies at trial as
to the date a bank became the owner of the note can serve the same
purpose as an affidavit of ownership.
At trial, Bank introduced the original note and the allonge to note
through a senior litigation analyst with Bank’s servicer. The original note
contained an undated special endorsement in favor of Exam Financial
Group, LLC, while the allonge to note contained an undated special
endorsement in favor of Bank. Because the original note and the allonge
to note were filed after Bank filed its foreclosure complaint, and each
contained undated special endorsements, Bank had to establish standing
through the testimony of the litigation analyst. It failed to do so.
Here, the analyst never stated when Bank became the owner of the
note. He gave the date of the first endorsement found on the allonge to
note, but he did not discuss the date of the second endorsement found on
the allonge. The second endorsement found on the allonge to note was the
pertinent one as it was the one which specially endorsed the note to Bank.
See McLean, 79 So. 3d at 174 (reversing summary judgment because the
bank filed the original note with a special endorsement after it filed its
complaint, the special endorsement was not dated and there was no
evidence as to when the special endorsement was made). Although the
analyst testified that Ocwen (Bank’s servicer) came into possession of the
note prior to filing the foreclosure action, such testimony is not dispositive
as it is still unclear when Bank, through the placement of the special
endorsement, became the owner of the note.
Because Bank failed to establish when it became the owner of the note,
the trial court erred in finding Bank had standing to initiate the foreclosure
action. Accordingly, we reverse the final judgment of foreclosure and
remand for entry of an order of involuntary dismissal of the action. See
Lacombe, 39 Fla. L. Weekly at D2158 (“We decline to remand the case for
presentation of additional evidence because ‘appellate courts do not
generally provide parties with an opportunity to retry their case upon a
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failure of proof.’” (quoting Morton’s of Chicago, Inc. v. Lira, 48 So. 3d 76, 80
(Fla. 1st DCA 2010))).
Reversed and Remanded.
DAMOORGIAN, C.J., and GROSS, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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