GREGORY MAKI AND ELIZABETH MAKI v. GREEN TREE SERVICING, LLC

257 So. 3d 1237

• Court: District Court of Appeal of Florida
• Decided: December 5, 2018
• Docket: 17-0922
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

GREGORY MAKI and ELIZABETH MAKI, ) ) Appellants, ) ) v. ) Case No. 2D17-922 ) GREEN TREE SERVICING, LLC, ) ) Appellee. ) )

Opinion filed December 5, 2018.

Appeal from the Circuit Court for Lee County; Michael T. McHugh, Judge.

Gregory Maki and Elizabeth Maki, pro se.

Preston C. Davis, Stephen Janes, Steven G. Hurley, and William Noriega of Padgett Law Group, Tallahassee, for Appellee.

SALARIO, Judge.

This is an appeal from a final judgment of foreclosure. We are required to

reverse because, as has become far too common in residential foreclosure cases, the

plaintiff that took the case to trial—Wilmington Savings Fund Society, FSB, which was

neither the original lender nor the original plaintiff—failed to present legally sufficient evidence that it had standing under section 673.3011, Florida Statutes (2016), to

enforce the promissory note upon which this foreclosure action is based.1

The already expansive body of foreclosure law in Florida will not benefit

from another long opinion that details a foreclosure plaintiff's failure of proof when

standing has been placed at issue or that repeats the settled legal principles governing

that question. That is, and was when this case was tried, well-trodden ground. The

bottom line in the present appeal is this: Although it proceeded to trial on the theory that

it was the holder of the note, Wilmington's trial evidence failed to show that the entity

identified as the original lender on the note (America's Wholesale Lender) ever

negotiated, assigned, or otherwise transferred the note to anyone and, even if did, that

the entity that supposedly assigned the note to Wilmington (Ditech Financial, LLC, as

successor-by-merger to Green Tree Servicing, LLC) ever actually owned the note or

otherwise had the right to assign or transfer it. See, e.g., Olivera v. Bank of Am., N.A.,

141 So. 3d 770, 773 (Fla. 2d DCA 2014) (reversing summary judgment on standing

grounds where "[n]othing in the record reflect[ed] a chain of transfer of interest . . . from

the original lender"); Segall v. Wachovia Bank, N.A., 192 So. 3d 1241, 1246 (Fla. 4th

DCA 2016) (reversing final judgment of foreclosure based on lack of standing where

"Wachovia failed to sufficiently prove that Chase Home merged with Chase Bank[] and

that Chase Bank thus acquired the note"). At oral argument, Wilmington all but

conceded the absence of evidence on the latter point.

1Green Tree Servicing, LLC—a prior named plaintiff in the circuit court proceedings—is the listed appellee in the style of this case. Prior to the entry of the final judgment in the trial court, however, Wilmington was substituted as the plaintiff and is the party ultimately required to establish standing for the purposes of this foreclosure.

-2- Because Wilmington's failure of proof on standing is dispositive, we do not

reach the other issues raised by the appellants. We reverse and remand with directions

that the trial court enter an order of involuntary dismissal, which is the relief the

appellants properly sought in the trial court. See, e.g., Partridge v. Nationstar Mortg.,

LLC, 224 So. 3d 839, 842 (Fla. 2d DCA 2017).

Reversed and remanded with directions.

KHOUZAM and BLACK, JJ., Concur.

-3-