Dickson v. Roseville Properties, LLC

198 So. 3d 48, 2015 Fla. App. LEXIS 16720, 2015 WL 6777155
CourtDistrict Court of Appeal of Florida
DecidedNovember 6, 2015
Docket2D14-1137
StatusPublished
Cited by9 cases

This text of 198 So. 3d 48 (Dickson v. Roseville Properties, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dickson v. Roseville Properties, LLC, 198 So. 3d 48, 2015 Fla. App. LEXIS 16720, 2015 WL 6777155 (Fla. Ct. App. 2015).

Opinion

SALARIO, Judge.

In this residential foreclosure action, Michael and Magdalena Dickson appeal from a final judgment in favor of Roseville Properties, LLC, rendered after a nonjury trial. Prior to trial, Roseville was substituted as plaintiff in place of Nationstar Mortgage, LLC, which originally filed the action. Because Roseville failed to prove at trial that Nationstar had standing when it filed suit, we reverse and remand with instructions to enter an order of involuntary dismissal. . .

In September 2007, the Dicksons borrowed $224,000 from Ameripath Mortgage Corporation to finance the purchase of a residence. The' debt was evidenced by a note showing the Dicksons as borrowers and Ameripath as lender and secured by a mortgage showing the Dicksons as borrowers and Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Ameripath as lender. Beginning in November 2009, the Dicksons defaulted on the. note by failing to make their mortgage payments.

On July 18, 201Í, Nationstar filed a verified foreclosure complaint against the Dicksons. It alleged that it was entitled to enforce the note and mortgage but did not allege the factual or legal basis for that right. The only exhibits to the complaint were copies of the note and mortgage, which, because they made no reference to Nationstar, also failed to show the basis of its asserted right to foreclose. The Dick-sons filed affirmative defenses alleging, among other things, that Nationstar lacked' •standing to enforce the note because it failed to establish any basis for doing so.

On October 26, -2012, Roseville filed a motion to substitute itself for Nationstar as plaintiff. It alleged that after the complaint was filed,.-. Nationstar’s interest in the mortgage was transferred to Roseville. The Dicksons responded that Roseville lacked standing because Nationstar, from which Roseville acquired any rights* it had, also lacked standing. The trial court granted the motion, and Roseville was substituted for Nationstar as the plaintiff in this case.

Roseville later filed the original note,which contained no endorsement, and the original mortgage. It also -filed a docu *50 ment which reflected an assignment of the Dickson’s mortgage from Kondaur Capital Corporation to Roseville on August 16, 2012. Roseville also served the Dicksons with a set of requests for. admissions. Those requests sought admissions that Roseville was the owner of the note, the current holder, of the note, the owner of the mortgage, and the current holder of the mortgage. The Dicksons failed to answer the requests.

On September 6, 2013, the Dicksons filed a motion to dismiss alleging that Roseville lacked standing to foreclose ■ because Nationstar lacked such standing .at-the time the suit was filed. They attached copies of six assignments of their mortgage, all of which were dated after the foreclosure complaint was filed on July 18, 2011: (1) an assignment from MERS as nominee for Ameripath to U.S. Bank, N.A., “as trustee for the Maiden Lane Asset Backed Securities I Trust 2008-1, ⅜/o Na-tioristar” (U.S. Bank c/o Nationstar) dated September 22, 2011; (2)' an assignment from MERS as nominee for Ameripath directly to Nationstar dated September 23, 2011; (3) an assignment from U.S. Bank c/o Nationstar to Kondaur' dated December 16, 2011; (4) an assignment from U.S. Bank c/o Nationstar to Selene Finance dated February 2, 2012; (5) an assignment from Nationstar to Kondaur dated April 25, 2012; and (6) an assignment from Kondaur to Roseville dated August 16, 2012. Six days later; the trial court entered an order denying the Dicksons’ motion. On September 18, 2013, the Dick-sons filed a second motion to dismiss for lack of- standing. The trial court again denied the motion.

The trial court held a bench trial on February 10, 2014, As its sole witness, Roseville called Taisha Cintron, a Roseville account representative. She. testified that she was familiar with the Dicksons’ account, that their file was kept in the ordinary course of business, 'and that the loan was in default. -Through Ms. Cintron, Roseville introduced the Dicksons’ loan history into evidence. Ms. Cintron did not provide any testimony concerning Nations-tar’s entitlement to foreclose at the time suit was filed or Roseville’s entitlement to foreclose at the time of trial. At the close of Roseville’s case, the Dicksons moved to dismiss based on Roseville’s lack of standing. The trial court denied this motion and granted judgment in favor of Rose-ville. ,, .

Where, as here,' the defendant asserts a lack'of standing as a défense to foreclosure, it is incumbent upon the plaintiff to prove its standing at trial. Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 253-54 (Fla. 2d DCA 2012). This requires the plaintiff to.show that.it is the “holder” of the note or a person acting on behalf of the holder. Mortg. Elec. Regis, Sys., Inc. v. Azize, 965 So.2d. 151, 153 (Fla. 2d DCA 2007). If the plaintiff is not the original lender, it may establish its standing as a holder “by submitting a note with a blank or special-endorsement, an assignment of the note, or [with a sworn-statement] otherwise proving the plaintiffs status as the holder of the note.” Focht v. Wells Fargo Bank, N.A., 124. So.3d 308, 310 (Fla. 2d DCA 2013) (citing McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012)). A plaintiff that is not a holder, such as a mortgage servicer, can establish ’ standing through proof that it is authorized to enforce the note on behalf of the holder. Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642-43 (Fla. 2d DCA 2015).

For better or for worse, it is settled that it is not enough for the plaintiff to prove that it has standing when the case is tried; it must also prove that it had stand *51 ing when the complaint was filed. 1 May v. PHH Mortg. Corp., 150.So.3d 247, 248-49 (Fla. 2d DCA 2014); see also Focht, 124 So.3d at 311-12 (describing “a long line, of supreme court eases” requiring that a plaintiff have standing at the inception of the case). In Russell, we applied the rule requiring proof of standing at inception of the case to a substituted plaintiff and held that it was required to demonstrate that the original plaintiff had standing when the suit was filed.- 163 So.3d at 642. There,: the original plaintiff alleged in its complaint that it was the servicer of the mortgage at issue,- and -it later sought, to substitute a new plaintiff in its place based on an assignment of mortgage to that new plaintiff. Id. at -641; The defendant raised lack of standing as an affirmative defense, and at trial the substituted plaintiff failed to show that the original plaintiff had standing either as a holder or as servi-cer authorized by the holder to enforce the note. Id. at 641-42. Because the substituted plaintiff failed to prove the original plaintiffs standing at inception, we reversed the final judgment of foreclosure. Id. at 643.

This case is indistinguishable from Russell. The record is devoid of any evidence that Nationstar had standing when it filed suit.' The original note and mortgage filed with the trial court contain no indication that Nationstar was the holder at the time the complaint was filed.

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Cite This Page — Counsel Stack

Bluebook (online)
198 So. 3d 48, 2015 Fla. App. LEXIS 16720, 2015 WL 6777155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickson-v-roseville-properties-llc-fladistctapp-2015.