District Court of Appeal of Florida,Second District.
BANK OF AMERICA, N.A., successor by merger to BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, L.P.; and Marie Black, Appellees.
Leslie M. Conklin, Clearwater, for Appellants. J. Randolph Liebler and Tricia J. Duthiers of Liebler Gonzalez & Portuondo, Miami, for Appellee Bank of America. No appearance for Appellee Marie Black.
St. Andrews at the Eagles, Inc., appeals a final judgment of foreclosure in favor of Bank of America.1 We reverse because the Bank failed to prove its standing.
On the copies of the mortgage and note attached to the complaint, the lender was identified as Countrywide Bank, FSB. Mortgage Electronic Registrations Systems, Inc., commonly referred to as MERS, was named as the nominee for the lender and its successors and assigns. There was neither an endorsement on, nor an allonge attached to, the note.
St. Andrews answered the complaint and pleaded an affirmative defense asserting that BAC lacked standing to foreclose. In response to St. Andrews’ request to produce, BAC filed an assignment of the mortgage from MERS to BAC. The assignment stated that it was signed November 5, 2009, which was almost a month after the foreclosure complaint was filed, “but effective as of” October 5, 2009, about a week before the complaint was filed. A stamp indicated that it was recorded in the Hillsborough County public records on December 16, 2009.
St. Andrews filed an answer to the amended complaint and again alleged lack of standing as an affirmative defense. At trial, the Bank presented the testimony of Philip Houghtby, who was employed by Bank of America as assistant vice president, mortgage resolution associates. He recounted that he reviewed the Bank’s records concerning this loan, which included records from Countrywide/BAC that were incorporated into the Bank’s records after the merger. Houghtby testified that the Bank was actually in possession of the note when the original complaint was filed, but he did not know and was unable to say when the note was endorsed.
As indicated, the note was payable to Countrywide Bank, which was not a party to the foreclosure action. To be a holder entitled to enforce under the facts of this case, Bank of America was required to show physical possession of the original note and an endorsement or allonge either in blank or in favor of the plaintiff. See Keifert v. Nationstar Mortg., LLC, 153 So.3d 351, 353 (Fla. 1st DCA 2014). The endorsement must have occurred before the filing of the complaint because it is axiomatic that standing must be shown as of the filing of the complaint. Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). Here, Bank of America failed to show when the endorsement was added.
Had the note with the blank endorsement been filed with the original complaint, that would have been sufficient to show standing. See Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So.3d 1222 (Fla. 2d DCA 2014) (concluding that there was sufficient evidence of standing when the note attached to the original complaint contained the blank endorsement and the plaintiff introduced the original at trial). But in this case, the original complaint included a count to reestablish a lost note, and the copy of the note attached to that complaint lacked the endorsement. Thus, a later filed copy of the note with the endorsement did not suffice to show standing at the time the complaint was filed. See May v. PHH Mortg. Corp., 150 So.3d 247 (Fla. 2d DCA 2014) (reversing final judgment of foreclosure after jury trial when plaintiff failed to show standing at beginning of case; original complaint included count to reestablish lost note and attached copy of note with no endorsement; later filing of original note with endorsements was not sufficient because bank failed to show when note was endorsed).
1. The Eagles Master Association was dropped from the case below by a clerk’s default, which is not challenged on appeal.
KHOUZAM and LUCAS, JJ., Concur.