Standing in foreclosure cases continues to be a hot issue in Florida’s appellate courts. It seems like a week doesn’t go by without an opinion that reminds lenders what they need to do to establish standing to foreclose a mortgage.
This week, Florida’s Fourth District Court of Appeal issued two opinions discussing foreclosure standing. Both resulted in reversal of a foreclosure judgment.
In the first case, the lender sought to establish standing as a “holder” of the note. The Court found, however, that the lender’s evidence at trial did not establish standing at the time the complaint was filed. Because the note was not made payable to the lender and did not contain either a special endorsement in favor of the lender or a blank endorsement, standing was not established. A blank endorsement on the original note that was dated after the complaint was filed and an assignment dated after suit was filed were both found to be insufficient.
In the second case, the original note was not presented at trial. The Court again found that the plaintiff failed to prove that it was the holder of the note when the complaint was filed. The plaintiff’s failure to offer evidence as to when the allonge was attached to the note or when the endorsement occurred ultimately doomed the lender’s case. The absence of proof that the plaintiff had possession of the note when the case was filed also prevented a finding that it was entitled to enforce it as a lost instrument.
Florida appellate courts continue to take a hard-line view of foreclosure standing. These rulings are a reminder to lenders to “Think about the place where [your note’s] been,” but makes you “Wonder why [they] haven’t before.”
David Greene is a commercial litigation partner in Fox Rothschild’s West Palm Beach office. His practice focuses primarily on banking litigation, real estate litigation, title insurance litigation, and construction litigation. You can reach David at 561-804-4441 or firstname.lastname@example.org.