Florida Attorney Mark Stopa: The party seeking foreclosure must demonstrate that it has standing to foreclose.

 

Editor’s Note:  Mark Stopa is an excellent foreclosure attorney located in Tampa, Florida.  We highly recommend his foreclosure blog a www.stayinmyhome.com.
https://scholar.google.com/scholar_case?case=16000307729425709560&hl=en&as_sdt=2006

PATRICK WALSH AND CATHERINE WALSH, Appellants,
v.
BANK OF NEW YORK MELLON TRUST, ETC., ET AL., Appellees.

Case No. 5D15-1898.District Court of Appeal of Florida, Fifth District.Opinion filed April 21, 2017.Appeal from the Circuit Court for Lake County, Carven D. Angel, Judge.

Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellants.

Matthew A. Ciccio, of Aldridge/Pite, LLP, Delray Beach, for Appellee, Bank of New York Mellon Trust.

No appearance for other appellees.

PALMER, J.

Patrick and Catherine Walsh (borrowers) appeal the trial court’s final judgment of foreclosure entered in favor of Bank of New York Trust (the bank). Determining that the bank failed to prove standing, we reverse and remand for the entry of an involuntary dismissal.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) (citations omitted). Additionally, a “party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011). Thus, in order to prove standing, the bank was required to introduce admissible evidence that it (or its agent) possessed a properly-indorsed note at the inception of the case. Focht v. Wells Fargo Bank, N.A, 124 So. 3d 308, 310-11 (Fla. 2d DCA 2013).

Here, the copy of the note attached to the original complaint did not contain any indorsements, and the copy of the note attached to the amended complaint contained an undated blank indorsement. Such proof was insufficient to demonstrate standing because “standing cannot be established by simply filing a note with an undated indorsement or allonge months after the original complaint was filed.” Sorrell v. U.S. Bank Nat’l Ass’n, 198 So. 3d 845, 847 (Fla. 2d DCA 2016) (citing Focht, 124 So. 3d at 310; Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d 224, 226 (Fla. 2d DCA 2012)). In addition to introducing the note, the bank presented a witness who testified that, based on his review of the business records, the bank had possession of the note at the time the bank filed its complaint. Yet, his testimony was not based on personal knowledge, but rather, on his review of a screenshot, which was not offered or admitted into evidence. Thus, that testimony was also insufficient to prove standing. Therefore, the trial court committed reversible error in entering final judgment of foreclosure in favor of the bank. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 3d 1106 (Fla. 5th DCA 2015) (holding that the testimony of a witness regarding business records that are not entered into evidence at trial is insufficient to prove standing in a foreclosure case).

Accordingly, we reverse and remand for the entry of an involuntary dismissal. REVERSED and REMANDED.

COHEN, C.J., and SAWAYA, J., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

 

4 Responses

  1. But now…if the Defendant wins on lack of standing, we can’t get awarded attorney fees. What do we do then, after spending tens of thousands of dollars?

  2. David the lower courts know better they appear to be complicit with the land grab by the foreclosures that are taking the homes for the past government in my unprofessional opinion. I pray this ends in a good way for all of us soon, with new blood in the government. The lower court judges obviously appear to be the pockets of the criminals. Lujan V Defenders of Wildlife U.S . Supreme court supports this case and mine. At least seven states, the last being the Toledo case in Hawaii makes close to twenty cases that have been ruled this way in Supreme Courts for the homeowners. I pray mine is the first in the State of Washington. My attorney did a good job on my case so I am waiting under extreme stress for the results. My home started out with modification from hell fraud I tried to battle as a pro se in a non judicial state, blocked by a federal judge, which lead to this judicial case now by frauds with undated copies of notes and two different notes. One endorsed in blank and one not endorsed at all. Never an authentic note. They pretend to waive the authentic note in the court room seventeen months later and refused to allow it to be fully forensically chemically tested. an affidavit by the attorney not anyone from the alleged lender. There is more and it is ridiculous this case went this far. If the WA Supreme court does not allow the petition for review it will be a terrible miscarriage of justice.

  3. This mirrors my case now in the WA Supreme court Petition for review. Washington has not ruled on this issue before so I am praying it ends the same and should. A like this case my case should never have survived this long in the lower courts. Very sad but very true.

  4. Happened to me,Wells Fargo says they sold my loan to thornburg who is history,and disputes their claims,mid way through the first case a endorsement magically appears from Joan M. Mills,to Wells Fargo even though Mrs Mills claims to work for Wells Fargo so they endorses a loan to themselves after no endorsement was ever there and guess what?NO ONE CARES.

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