Debra Jarvis v. Deutsche Bank National Trust Company

169 So. 3d 194, 2015 Fla. App. LEXIS 9256, 2015 WL 3760659

• Court: District Court of Appeal of Florida
• Decided: June 17, 2015
• Docket: 4D14-991
• Status: Published

Opinion

STEVENSON, J.

Debra Jarvis (“Homeowner”) appeals a final judgment of foreclosure. We find merit in her argument that Deutsche Bank National Trust Company (“Deutsche Bank”) lacked standing at the time it filed its foreclosure complaint. On this basis, we reverse and remand for further proceedings.-

Facts

On May 14, 2009, Deutsche Bank filed its complaint, seeking to reform the mortgage and to foreclose on the mortgage. It attached to the complaint a copy of the mortgage and a copy of the note. The copy of the note listed the lender as America’s Wholesale Lender and contained no indorsements. The original note, introduced at trial, also contained no indorse-ments.

At trial, Deutsche Bank relied on a Pooling and Servicing Agreement (“PSA”) to argue that it had standing at the time it filed its complaint. Specifically, one of Deutsche Bank’s witnesses testified that it had standing because “[t]he loan was entered into the trust shortly after origination, and we also have business records that show that they were in possession of the note.” Put more simply, the witness stated Deutsche Bank was entitled to enforce the note “through possession.”

Homeowner moved for an involuntary dismissal of the action, arguing that Deutsche Bank failed to prove it had standing at the time it filed its complaint. The trial court denied the motion, but later granted Homeowner’s motion for involuntary dismissal on Count I (reformation of mortgage) and entered a final judgment of foreclosure on Count II.

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)). “[Standing must be established as of the time of filing the foreclosure complaint.” Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). “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 plaintiffs status as the holder of the note.” Id. (citing McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012)). 1

Here, Deutsche Bank faded to establish standing using any of these available methods. The original note contained no blank or special indorsements, and Deutsche Bank did not introduce into evidence an assignment. Further, evidence that the note was physically transferred into a trust prior to Deutsche Bank filing its foreclosure complaint does not, by itself, establish standing. See Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 353 (Fla. 1st DCA 2014) (“Such a plaintiff must prove not only physical possession of the original note but also, if the plaintiff is not the named payee, possession of the original note endorsed in favor of the plaintiff or in blank (which makes it bearer paper).”).

Accordingly, we reverse and remand for entry of an order of involuntary dismissal of the action. See Lacombe, 149 So.3d at 156 (“We decline to remand the case for the presentation of additional evidence because ‘appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.’” (quoting Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010))).

Reversed and remanded.

GERBER and LEVINE, JJ., concur.

1 . Of course, at a contested trial, as opposed to summary judgment, an affidavit would most likely be inadmissible in the absence of an agreement from the opposing party.