Nationstar Mortgage, LLC v. Bo Chan , 2017 Fla. App. LEXIS 11867 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
NATIONSTAR MORTGAGE, LLC,
Appellant,
v. Case No. 5D16-3492
BO CHAN,
Appellee.
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Opinion filed August 18, 2017
Appeal from the Circuit Court
for Seminole County,
Robert J. Pleus, Jr., Senior
Judge.
Nancy M. Wallace, of Akerman LLP,
Tallahassee, William Heller, of Akerman
LLP, Fort Lauderdale, and Scott R. Stengel,
of Akerman LLP, Orlando, for Appellant.
Kelley A. Bosecker, St. Petersburg, for
Appellee.
PER CURIAM.
Nationstar Mortgage, LLC, (“Appellant”) appeals the trial court’s involuntary
dismissal of its action for foreclosure of a promissory note and mortgage at the close of
its case-in-chief during trial. We reverse.
The case began when the original lender, Bank of America, N.A., filed a one-count
complaint against the Appellee and her husband to foreclose on the note and mortgage
that it held on Appellee’s real property.1 Bank of America alleged that although it was no
longer the owner of the note, it was the holder of the note and servicer of the loan, and it
attached to its complaint a copy of the note and mortgage, with the note containing a
blank indorsement. Sometime thereafter, Bank of America filed the original note with this
same blank indorsement with the clerk of court together with a certified copy of the
mortgage, where they remained at the time of trial. Bank of America later moved to
amend its complaint to substitute Appellant as the party-plaintiff, alleging that the note
and mortgage had been assigned to Appellant and that, as the holder, Appellant was now
entitled to enforce the note and mortgage. The motion was granted without objection.
At trial, Appellant moved the original note and the certified copy of the mortgage,
that had previously been filed with the court, into evidence without objection. Appellant
also moved into evidence the demand letter sent pursuant to paragraph 22 of the
mortgage and its payment history records establishing Appellee’s default on the note and
mortgage. After Appellant concluded the presentation of its evidence and rested its case,
Appellee moved for an involuntary dismissal. The trial court granted Appellee’s motion
to dismiss, but it did so for reasons wholly unrelated to those argued by Appellee. The
court found that Appellant failed to establish standing at the time suit was filed, and it
thereafter entered the final order of dismissal now on appeal.
“We apply a de novo standard of review in determining whether a party has
standing to bring an action.” U.S. Bank Nat’l Ass’n v. Laird, 200 So. 3d 176, 177 (Fla. 5th
DCA 2016) (citing Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA
1 Appellee’s husband passed away during the litigation below and was dropped as
a party.
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2014)). “A party seeking foreclosure has the burden to establish that it had standing at
the time it filed the foreclosure complaint.” Id. (citing Boyd, 143 So. 3d at 1129).
Here, Appellant was not the original plaintiff; however, as the substitute plaintiff,
Appellant “stands in the shoes of the original plaintiff/mortgagee,” Sandefur v. RVS
Capital, LLC, 183 So. 3d 1258, 1260 (Fla. 4th DCA 2016) (quoting Miller v. Kondaur
Capital Corp., 91 So. 3d 218, 219 (Fla. 4th DCA 2012)), and “acquires the standing (if
any) of the original plaintiff at the time the case was filed.” Id. (citing Lewis v. J.P. Morgan
Chase Bank, 138 So. 3d 1212, 1213 (Fla. 4th DCA 2014)). In the instant case, the original
plaintiff filed with the court the original note, with a blank indorsement, that was in the
same condition as the copy that it attached to the initial complaint. This is sufficient to
establish that the original plaintiff had standing to bring the foreclosure action, absent any
evidence or testimony to the contrary (which there was none). Thus, the trial court erred
in holding that Appellant, as the substituted plaintiff, failed to establish standing at the
time suit was filed. See Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA
2016); Clay Cty. Land Trust No. 08-04-25-0078-014-27 v. JPMorgan Chase Bank, Nat’l
Ass’n, 152 So. 3d 83, 85 (Fla. 1st DCA 2014). Finally, we reject, without further comment,
the remaining grounds asserted by Appellee for affirmance.
Accordingly, because Appellant had established standing at the inception of the
suit, we reverse the order of involuntary dismissal and remand this case for a new trial.
REVERSED and REMANDED.
COHEN, C.J., SAWAYA and LAMBERT, JJ., concur.
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