GREGORY MAKI AND ELIZABETH MAKI v. GREEN TREE SERVICING, LLC , 257 So. 3d 1237 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GREGORY MAKI and ELIZABETH MAKI, )
)
Appellants, )
)
v. ) Case No. 2D17-922
)
GREEN TREE SERVICING, LLC, )
)
Appellee. )
)
Opinion filed December 5, 2018.
Appeal from the Circuit Court for Lee
County; Michael T. McHugh, Judge.
Gregory Maki and Elizabeth Maki, pro se.
Preston C. Davis, Stephen Janes,
Steven G. Hurley, and William Noriega
of Padgett Law Group, Tallahassee, for
Appellee.
SALARIO, Judge.
This is an appeal from a final judgment of foreclosure. We are required to
reverse because, as has become far too common in residential foreclosure cases, the
plaintiff that took the case to trial—Wilmington Savings Fund Society, FSB, which was
neither the original lender nor the original plaintiff—failed to present legally sufficient
evidence that it had standing under section 673.3011, Florida Statutes (2016), to
enforce the promissory note upon which this foreclosure action is based.1
The already expansive body of foreclosure law in Florida will not benefit
from another long opinion that details a foreclosure plaintiff's failure of proof when
standing has been placed at issue or that repeats the settled legal principles governing
that question. That is, and was when this case was tried, well-trodden ground. The
bottom line in the present appeal is this: Although it proceeded to trial on the theory that
it was the holder of the note, Wilmington's trial evidence failed to show that the entity
identified as the original lender on the note (America's Wholesale Lender) ever
negotiated, assigned, or otherwise transferred the note to anyone and, even if did, that
the entity that supposedly assigned the note to Wilmington (Ditech Financial, LLC, as
successor-by-merger to Green Tree Servicing, LLC) ever actually owned the note or
otherwise had the right to assign or transfer it. See, e.g., Olivera v. Bank of Am., N.A.,
141 So. 3d 770, 773 (Fla. 2d DCA 2014) (reversing summary judgment on standing
grounds where "[n]othing in the record reflect[ed] a chain of transfer of interest . . . from
the original lender"); Segall v. Wachovia Bank, N.A., 192 So. 3d 1241, 1246 (Fla. 4th
DCA 2016) (reversing final judgment of foreclosure based on lack of standing where
"Wachovia failed to sufficiently prove that Chase Home merged with Chase Bank[] and
that Chase Bank thus acquired the note"). At oral argument, Wilmington all but
conceded the absence of evidence on the latter point.
1Green Tree Servicing, LLC—a prior named plaintiff in the circuit court
proceedings—is the listed appellee in the style of this case. Prior to the entry of the
final judgment in the trial court, however, Wilmington was substituted as the plaintiff and
is the party ultimately required to establish standing for the purposes of this foreclosure.
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Because Wilmington's failure of proof on standing is dispositive, we do not
reach the other issues raised by the appellants. We reverse and remand with directions
that the trial court enter an order of involuntary dismissal, which is the relief the
appellants properly sought in the trial court. See, e.g., Partridge v. Nationstar Mortg.,
LLC, 224 So. 3d 839, 842 (Fla. 2d DCA 2017).
Reversed and remanded with directions.
KHOUZAM and BLACK, JJ., Concur.
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