NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VINCE ARCURI, a/k/a VINCENT ARCURI, )
individually and as trustee of The 18913 )
Chaville Road Residential Land Trust, )
Under Trust Dated April 15, 2008, )
)
Appellant, )
)
v. ) Case No. 2D16-4201
)
HSBC BANK USA, NATIONAL )
ASSOCIATION, as trustee for SG )
Mortgage Securities Trust 2006-FREI, )
Asset Backed Certificates, Series FREI, )
)
Appellee. )
)
Opinion filed March 2, 2018.
Appeal from the Circuit Court for
Hillsborough County; Mark D. Kiser, Judge.
Nick Fowler and Sami Thalji of Stamatakis +
Thalji + Bonanno, Tampa, for Appellant.
Karusha Y. Sharpe and M. Hope Keating of
Greenberg Traurig, P.A. Tallahassee, and
Michele L. Stocker of Greenberg Taurig,
P.A., Fort Lauderdale, for Appellee.
NORTHCUTT, Judge.
Vincent Arcuri contends that the final judgment foreclosing his mortgage
must be set aside because the bank failed to prove its standing to foreclose. We agree
and reverse.
HSBC Bank USA, National Association, filed a complaint alleging that
Arcuri was in default because he had stopped making payments on his mortgage and
that the bank was entitled to enforce the note as a holder in possession and to foreclose
on the mortgage. In his affirmative defenses, Arcuri asserted that the bank did not have
standing because the note had not been properly endorsed and assigned to the bank.
At trial, the note and mortgage were admitted into evidence. The note
reflected that the lender was Fremont Investment and Loan. An allonge to the note
purported to transfer it to HSBC Bank from SGGH, LLC, successor in interest to
Fremont Reorganizing Corporation, f/k/a Fremont Investment and Loan. The bank
called Debra Kavalry as its only witness. She testified that she worked for Wells Fargo
Bank, N.A., which serviced the loan in question for the bank. When the bank sought to
introduce the note, Arcuri conducted a voir dire wherein Kavalry testified that she had
no documentation showing that Fremont Reorganization Corporation was formerly
known as Fremont Investment and Loan or that SGGH was the successor in interest to
Fremont Reorganization Corporation. Arcuri objected to the introduction of the allonge,
but he was overruled.
Following the bank's case, Arcuri called Kavalry as a witness. She
testified that she had no personal knowledge that Fremont Reorganization Corporation
was formerly Fremont Investment and Loan and she had nothing in writing to establish
such. She also testified that she had no personal knowledge that SGGH was the
successor in interest to Fremont Reorganization Corporation. In closing argument,
Arcuri contended that the bank did not prove standing because it failed to establish that
its assignor, SGGH, was a successor in interest to the original lender Fremont
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Investment and Loan. Arcuri relied on Gee v. U.S. Bank National Ass'n, 72 So. 3d 211
(Fla. 5th DCA 2011), in support of his argument.
This court in American Home Mortgage Servicing, Inc. v. Bednarek, 132
So. 3d 1222, 1223 (Fla. 2d DCA 2014), reiterated the black letter law regarding standing
to foreclose:
A party seeking foreclosure must establish that it had
standing to foreclose at the time it filed the complaint. A
foreclosure plaintiff has standing if it owns and holds the
note at the time suit is filed. A plaintiff may also establish
standing to foreclose by submitting evidence of a special
endorsement on the note in favor of the plaintiff or a blank
endorsement, an assignment from the payee to the plaintiff,
or an affidavit of ownership.
(Citations omitted.) Here, the bank alleged in the complaint that it was the holder in
possession of the note. But it could only be a holder in possession with standing to
foreclose the mortgage if there was a valid assignment of the note by SGGH as the
successor in interest to Fremont Investment and Loan.
The court in Gee considered a very similar situation:
To prove its ownership, U.S. Bank filed a copy of the
Mortgage [denoting the mortgage and note] as well as two
assignments. The first assignment transferred the Mortgage
from Advent Mortgage, the original mortgagee, to Option
One. The second assignment purported to transfer the
mortgage from American Home, as successor in interest of
Option One, to U.S. Bank. However, and significant to our
consideration, U.S. Bank provided nothing to demonstrate
how American Home came to be the successor in interest to
Option One.
72 So. 3d at 213. The court then stated:
When Ms. Gee denied that U.S. Bank had an interest in the
Mortgage, ownership became an issue that U.S. Bank, as
the plaintiff, was required to prove. As U.S. Bank failed to
offer any proof of American Home's authority to assign the
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Mortgage, we conclude that it failed to establish its standing
to bring the foreclosure action as a matter of law.
Id. at 214 (citations omitted).
Here, Arcuri specifically challenged the chain of assignments based on the
holding of Gee. Because the bank failed to offer any proof of SGGH's authority to
assign the note to the bank, the bank failed to establish standing. Accordingly, we
reverse the final judgment of foreclosure and remand for entry of a final order of
involuntary dismissal. See Buckingham v. Bank of Am., N.A., 230 So. 3d 923, 925 (Fla.
2d DCA 2017).
Reversed and remanded with instructions.
CASANUEVA and BLACK, JJ., Concur.
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