Edgar Braga v. Fannie Mae ("Federal National Mortgage Association") , 2016 Fla. App. LEXIS 5281 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EDGAR BRAGA,
Appellant,
v.
FANNIE MAE (“FEDERAL NATIONAL MORTGAGE ASSOCIATION”),
Appellee.
No. 4D14-1809
[April 6, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard H. Harrison, Senior Judge; L.T. Case No. 50-2008-
CA-040270XXXXMB-AW.
Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellant.
H. Michael Muñiz of Kahane & Associates, P.A., Plantation, for appellee.
PER CURIAM.
We reverse the final judgment of foreclosure because the plaintiff failed
to prove that an undated indorsement in blank was placed on an allonge
prior to filing the original complaint.
CitiMortgage, Inc., filed a foreclosure action against Appellant.
Attached to the complaint was a copy of the promissory note, which
contained a stamp on the signature page indicating that an allonge was
attached. However, no copy of the allonge was included with the
complaint. An amended complaint was later filed, substituting Fannie
Mae as the named plaintiff and including a copy of the allonge, which
contained an undated indorsement in blank. At trial, Fannie Mae’s sole
witness testified that he did not know when the allonge was created, nor
was he aware of when CitiMortgage became the note’s holder.
The sufficiency of the evidence proving standing to bring a foreclosure
action is reviewed de novo. Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950,
951 (Fla. 4th DCA 2014). It is well settled that a plaintiff in a foreclosure
case must demonstrate it had standing at the time the complaint was filed.
McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th
DCA 2012). When a note is indorsed in blank, it becomes bearer paper
and is “negotiated by transfer of possession alone.” Calvo v. U.S. Bank
Nat’l Ass’n, 181 So. 3d 562, 564 (Fla. 4th DCA 2015) (quoting §
673.2051(2), Fla. Stat. (2014)). If a plaintiff’s standing derives from its
status as a holder, based on an indorsement in blank, the plaintiff must
establish that it had possession of the indorsed original note at the time
the complaint was filed. Id. An undated indorsement introduced after the
complaint was filed, is insufficient, without further evidence, to prove
standing at the time the complaint was filed. Id.; see also Balch v. LaSalle
Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015) (finding plaintiff failed
to prove standing where there was no evidence indicating when the
indorsement was placed onto the note).
Because Fannie Mae did not prove that CitiMortgage was the note’s
holder at the commencement of the action, Fannie Mae failed to establish
CitiMortgage’s standing to foreclose when the complaint was filed.
Therefore, we reverse the final judgment of foreclosure and remand for
entry of an order of involuntary dismissal of the action. See Calvo, 181
So. 3d at 564.
STEVENSON, GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
.
-2-