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Mortgage Foreclosure—Standing: Florida Appellate Court reverses judgment of foreclosure.

By gedlaw50486353, Feb 21 2016 07:09PM

The First District Court of Appeal of Florida (“1st DCA”) recently reversed a judgment of foreclosure where the bank failed to establish standing before the filing of the complaint.

The Defendant in this case appealed a final judgment of foreclosure stating that the Bank failed to file the original note bearing an undated blank endorsement until after the filing of the complaint. The Florida courts have ruled that where a plaintiff files the original note after the complaint is filed, an undated blank endorsement on the note does not prove that plaintiff had standing at the time the complaint was filed. Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015). Further, when standing is asserted by plaintiff based on an undated endorsement, it must be shown that the endorsement occurred before the complaint was filed. Lloyd v. Bank of N.Y. Mellon, 160 So. 3d 513, 515 (Fla. 4th DCA 2015). This can be proved by additional evidence such as a litigation expert. Id.

The Bank in this case brought in a mortgage resolution associate from a prior servicer on the loan who testified that the Bank was the holder of the note. The associate also testified that the loan servicer’s routing history showed the “collateral file” was sent to the bank’s counsel prior to filing the complaint but this evidence was not admitted by the Court. The Court held that the testimony of the associate did not establish that the note was endorsed at the time of filing the complaint and therefore the Bank had failed to show standing to foreclose at time the complaint was filed. Accordingly, the Court of Appeal reversed the lower court’s final judgment of foreclosure.

See Kelly v. Bank of N.Y. Mellon, 170 So. 3d 145, (Fla. 1st DCA, 2015). (pf)

Click here to read full opinion.

https://edca.1dca.org/DCADocs/2013/2778/132778_DC13_07142015_084412_i.pdf

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