Andrew Tremblay, Heidi Tremblay and Mary Tremblay v. U.S. Bank, N.A. , 164 So. 3d 85 ( 2015 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    ANDREW TREMBLAY, HEIDI TREMBLAY
    and MARY TREMBLAY,
    Appellants,
    v.
    U.S. BANK, N.A., as Trustee, Successor-in-Interest to
    Wachovia Bank, N.A., as Trustee, for MLMI 2005-A9,
    Appellee.
    No. 4D13-2402
    [May 6, 2015]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Miette K. Burnstein, Judge; L.T. Case No. 09-40986 CA.
    Brian Korte of Korte & Wortman, P.A., West Palm Beach, for appellants.
    Kimberly N. Hopkins and Ronald M. Gaché of Shapiro, Fishman &
    Gaché, LLP, Tampa, for appellee.
    PER CURIAM.
    Andrew, Heidi and Mary Tremblay (“Homeowners”) appeal a final
    judgment of foreclosure. We find merit in Homeowners’ argument that
    appellee, U.S. Bank, N.A. (“Bank”), lacked standing to foreclose when it
    filed its foreclosure complaint. Therefore, we reverse the final judgment
    and remand for entry of an order of involuntary dismissal. Our conclusion
    on Bank’s lack of standing renders moot Homeowners’ second issue on
    appeal.
    Facts
    In Bank’s unverified foreclosure complaint filed in July, 2009, it alleged
    it was the current owner and holder of the note and mortgage. In support,
    it attached copies of the mortgage and the note. The mortgage listed
    Metrocities Mortgage as the lender and MERS as the mortgagee. The note
    included a blank indorsement executed by an employee of Metrocities
    Mortgage. Bank later filed an assignment of note; however, it was executed
    on July 30, 2009, after Bank filed its foreclosure complaint.
    At the non-jury trial, Bank called only one witness. This witness
    worked for Bank’s servicer, PHH Mortgage Corporation (“PHH”), and
    testified that PHH—not Bank—was the holder of the note, and had been
    since August of 2005. The witness was unable to identify the exact date
    that Bank received the note. While there was apparently a Pooling and
    Servicing Agreement (“PSA”) to which both PHH and Bank were parties,
    the witness had never seen a copy of the PSA. Bank introduced into
    evidence the original note, a copy of the mortgage, the default letter and
    payment history, but did not submit the PSA into evidence. The trial court
    entered final judgment in favor of Bank.
    Analysis
    “We review the sufficiency of the evidence to prove standing to bring a
    foreclosure action de novo.” Lacombe v. Deutsche Bank Nat’l Trust Co., 
    149 So. 3d 152
    , 153 (Fla. 1st DCA 2014) (citing Dixon v. Express Equity Lending
    Grp., LLLP, 
    125 So. 3d 965
     (Fla. 4th DCA 2013)).
    It is axiomatic that a plaintiff in a foreclosure case must have standing
    at the time the complaint is filed. See Focht v. Wells Fargo Bank, N.A., 
    124 So. 3d 308
    , 310 (Fla. 2d DCA 2013) (“[S]tanding must be established as of
    the time of filing the foreclosure complaint.”). “A plaintiff who is not the
    original lender may establish standing to foreclose a mortgage loan by
    submitting a note with a blank or special endorsement, an assignment of
    the note, or an affidavit otherwise proving the plaintiff’s status as the
    holder of the note.” 
    Id.
     at 310 (citing McLean v. JP Morgan Chase Bank
    Nat’l Ass’n, 
    79 So. 3d 170
    , 173 (Fla. 4th DCA 2012)).
    In the instant case, Bank failed to provide sufficient evidence that it
    had standing at the time it filed its foreclosure complaint. First, the
    assignment did not confer standing upon Bank since it was executed after
    Bank filed its complaint. See Rigby v. Wells Fargo Bank, N.A., 
    84 So. 3d 1195
    , 1195–96 (Fla. 4th DCA 2012) (reversing entry of final summary
    judgment because the bank failed to establish it had standing to foreclose
    when the evidence showed the assignment was dated one day after the
    complaint was filed). Further, Bank’s attachment of a copy of the note
    with a blank indorsement was insufficient to establish standing because
    Bank’s only witness testified that his employer—the servicer—had been
    the holder of the note since August of 2005. Based on this testimony, the
    servicer was the proper party to initiate the action, not Bank. See BAC
    Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 
    28 So. 3d 936
    ,
    938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a
    note and/or mortgage is the holder of the note and mortgage or the holder’s
    representative.”); see Sosa v. U.S. Bank, N.A., 
    153 So. 3d 950
     (Fla. 4th DCA
    -2-
    2014).
    Since Bank failed to provide sufficient evidence of its ability to foreclose
    at the time it filed its complaint, we reverse and remand for entry of an
    order of involuntary dismissal. See Wolkoff v. Am. Home Mortg. Servicing,
    Inc., 
    153 So. 3d 280
    , 283 (Fla. 2d DCA 2014) (“‘[A]ppellate courts do not
    generally provide parties with an opportunity to retry their case upon a
    failure of proof.’” (quoting Correa v. U.S. Bank N.A., 
    118 So. 3d 952
    , 956
    (Fla. 2d DCA 2013))).
    Reversed and remanded.
    GROSS, MAY and KLINGENSMITH, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    -3-