GMAC MORTGAGE, LLC v. LINDA PISANO AND STEVEN PISANO , 227 So. 3d 1279 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GMAC MORTGAGE, LLC,
Appellant,
v.
LINDA PISANO, STEVEN PISANO, CAMINO SHERIDAN VILLAS
HOMEOWNERS ASSOCIATION, INC., CITIBANK (SOUTH DAKOTA),
N.A., and MARGARET BRANISS,
Appellees.
No. 4D15-2843
[October 11, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lynn Rosenthal, Judge; L.T. Case No. CACE09-059895
(11).
Kimberly S. Mello and Jonathan S. Tannen of Greenberg Traurig, P.A.,
Tampa, and Patrick G. Broderick of Greenberg Traurig, P.A., West Palm
Beach, for appellant.
Bruce Botsford of Bruce Botsford, P.A., Fort Lauderdale, for appellees
Linda Pisano and Steven Pisano.
PER CURIAM.
The bank appeals a final judgment dismissing its foreclosure action for
lack of standing. Because the bank demonstrated its standing as a holder
of the note, we reverse.
GMAC originated the homeowner’s loan in 2006. 1 Eventually, the
homeowner defaulted and GMAC initiated a foreclosure action. After
GMAC filed its complaint, Ocwen purchased the loan from GMAC and was
substituted as the plaintiff in the foreclosure case. At trial, an Ocwen
employee testified that GMAC had originated the loan and held the original
note from origination through the filing of the complaint. While GMAC
held the note, Freddie Mac/Fannie Mae actually owned the loan. Finding
1The homeowner died during the pendency of this appeal and appellees Linda
and Steven Pisano were substituted in her place.
that Ocwen had failed to demonstrate that GMAC owned the loan when it
filed the complaint, the trial court dismissed the action for lack of
standing.
We review questions of standing de novo. Vogel v. Wells Fargo Bank,
N.A., 192 So. 3d 714, 716 (Fla. 4th DCA 2016). A foreclosure plaintiff
satisfies the standing requirement when, at trial, it presents “competent,
substantial evidence that it has standing to foreclose.” Id.A plaintiff must have standing when it files the complaint. McLean v.
JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA
2012). Standing may be based on a plaintiff’s status as a note holder, id.,or its status as the original lender if “it owned the note and mortgage at
the time it filed suit,” Lewis v. J.P. Morgan Chase Bank, 138 So. 3d 1212,
1213 (Fla. 4th DCA 2014).
Here, the Ocwen employee’s trial testimony demonstrated that GMAC
held the note when it filed the complaint. The employee testified that she
did not know of any transfers based on her review of records related to the
note, nor did the records actually evidence any transfers of the note. In
fact, nothing in the record suggested that the note ever left GMAC’s
possession. Evidence of a blank indorsement on the note, without more,
does not support appellees’ argument that the note was transferred, but
only demonstrates that it could be transferred. See § 673.2051(2), Fla.
Stat. (“When indorsed in blank, an instrument becomes payable to bearer
and may be negotiated by transfer of possession alone until specially
indorsed.”) (emphasis added).
Because the record contained no evidence that the note was
transferred, we must conclude that GMAC remained the note’s sole holder
from the loan’s origination at least through the filing of the complaint.
Appellees’ assertions to the contrary are nothing more than mere
speculation. Because GMAC held the note when it filed the complaint, it
had standing to bring this action. McLean, 79 So. 3d at 173. Contrary to
the trial court’s conclusion, neither Ocwen nor GMAC had to prove that it
owned the loan in order to have standing. Thus, Ocwen, as successor
plaintiff to the note’s holder, can step into GMAC’s shoes and continue
with this suit. We therefore reverse the trial court’s dismissal of the action
and remand for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings.
WARNER, LEVINE, JJ., and BUCHANAN, LAURIE E., Associate Judge, concur.
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Not final until disposition of timely filed motion for rehearing.
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