DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHARLES REYNOLDS,
Appellant,
v.
NATIONSTAR LOAN SERVICES, LLC,
Appellee.
No. 4D14-4045
[April 27, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Judge; L.T. Case No.
2008CA028103XXXXMB.
Samuel D. Lopez of Samuel D. Lopez, P.A., Pembroke Pines, for
appellant.
Nancy M. Wallace and Diane G. DeWolf of Akerman LLP, Tallahassee,
and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee.
WARNER, J.
Charles Reynolds appeals a final judgment of foreclosure. He claims
that the appellee, Aurora Loan Services, LLC, failed to prove its standing
at the time the foreclosure complaint was filed. We agree that Aurora did
not prove standing because it did not prove that it was the holder of the
promissory note at the time of the filing of the suit. We thus reverse.
Reynolds executed a note and mortgage to Lehman Brothers Bank FSB,
on which he later defaulted. Aurora, the loan servicer, brought a
foreclosure action against Reynolds. Aurora alleged it was the owner and
holder of the note. A copy of the note without any endorsements was
attached to the complaint. Over a year later, Aurora filed the original note
with the court. It had two endorsements on it. The first was an undated
endorsement from Lehman Brothers Bank to Lehman Brothers Holdings.
The second was an endorsement in blank from Lehman Brothers Holdings.
Reynolds answered and asserted Aurora’s lack of standing as an
affirmative defense. After the complaint was filed but before final
judgment, Aurora was purchased by Nationstar Mortgage, LLC, and
Nationstar was substituted as party plaintiff.
At the trial, an employee of Nationstar testified as to all of the relevant
documents and the default. With respect to the note, the witness testified
that there were two endorsements, one from Lehman Brothers Holdings,
and one from Lehman Brothers Bank to Lehman Brothers Holdings, which
he said was the same as Aurora. Reynolds objected to the witness’s
testimony that Lehman Brothers Holdings was “the same as Aurora,” and
the court sustained the objection. The witness then testified that the note
was in Aurora’s possession at the time the complaint was filed. He did not
testify as to when the endorsements were placed on the note. Based upon
this testimony regarding the note, as well as other testimony about other
elements of the claim, the court denied Reynolds’s motion for involuntary
dismissal and entered a final judgment of foreclosure for Nationstar.
A determination that a party has standing to bring an action is a
question of law which is subject to de novo review. Westport Recovery
Corp. v. Midas, 954 So. 2d 750, 752 (Fla. 4th DCA 2007). Whether a party
is the proper party with standing to bring an action is a question of law to
be reviewed de novo. Elston/Leetsdale, LLC v. CWCapital Asset Mgmt.,
LLC, 87 So. 3d 14, 16 (Fla. 4th DCA 2012).
A party’s standing is determined at the time the lawsuit is filed. McLean
v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA
2012). “[S]tanding may be established from a plaintiff’s status as the note
holder, regardless of any recorded assignments. If the note does not name
the plaintiff as the payee, the note must bear a special endorsement in
favor of the plaintiff or a blank endorsement.” Id. (citation omitted).
Reynolds claims that Nationstar did not prove Aurora’s standing at the
time the complaint was filed. Nationstar’s witness testified over objection
that Aurora had possession of the note prior to filing the lawsuit, but there
was no competent explanation of how or when the transfers from Lehman
Brothers Holdings occurred or whether they occurred prior to the suit
being filed. There was no evidence as to when the endorsements on the
note were made—they were not on the copy attached to the complaint and
only appeared over a year later when the original was filed. To make up
for this deficiency, the witness tried to testify that Aurora and Lehman
Brothers Holding were one and the same, but the court sustained the
objection to this testimony. Without that evidence, there was no testimony
to show that Aurora was a holder of the note at the time of the filing of the
complaint.
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In its brief, Nationstar states in a footnote that “it is well known,
particularly among judges who preside over hundreds of foreclosure
actions, that Aurora is the servicing arm of Lehman Brothers.” This
information might qualify for judicial notice either as “[f]acts that are not
subject to dispute because they are generally known within the territorial
jurisdiction of the court” or “[f]acts that are not subject to dispute because
they are capable of accurate and ready determination by resort to sources
whose accuracy cannot be questioned.” § 90.202(11), (12), Fla. Stat.
(2013). However, we cannot take judicial notice of this “fact,” nor can the
trial court without a timely and otherwise sufficient request under section
90.203, Florida Statutes (2013). Here, however, when Reynolds objected,
Nationstar did not attempt to otherwise prove the connection between
Lehman Brothers and Aurora. Without evidence of such, Nationstar was
unable prove that Aurora held the note at the time it filed suit.
We thus reverse for entry of a judgment of dismissal of the complaint
for foreclosure.
CIKLIN, C.J., and KLINGENSMITH, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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