OTTO P. DEVRIES AND BRIGITTE YOUNG DEVRIES, APPELLANTS,
v.
CITIMORTGAGE INC., ET AL., APPELLEES

Fla. 5th DCA | 2016-03-24
No. 5D14-1887
SAWAYA and TORPY, JJ., concur.
188 So. 3d 909 Florida District Court of Appeal, Fifth District (2016) Caution
Cited by 1 case

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Homeowners Otto and Brigitte Devries appealed a foreclosure judgment entered against them by CitiMortgage. The appellate court reversed the judgment, finding that CitiMortgage failed to establish standing to foreclose because it presented insufficient evidence that it held the note at the time the complaint was filed.


Holding

CitiMortgage failed to establish standing to foreclose because it presented no evidence that the special indorsement in its favor or the assignment occurred before the complaint was filed. A backdated assignment standing alone, without testimony or evidence that the note and mortgage were delivered with intent to pass title before filing, does not establish standing.


Headnotes

[1] A party seeking to foreclose a mortgage must prove standing as of the date the complaint was filed.

[2] A party may establish standing to foreclose a mortgage as the holder of the note, a nonholder in possession with the rights of a holder, or a person with the right to re-…

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Key Quotes

“The proper party entitled to enforce a note and foreclose a mortgage is the holder of the note, a nonholder in possession who has the rights of a holder, or a person not in possession of a lost instrument who has the right to re-establish the note pursuant to section 673.3091, Florida Statutes.”

Establishes the legal standard for standing to foreclose a mortgage

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Facts & Procedural History

CitiMortgage filed a foreclosure action in 2010 against the Devries homeowners. The note attached to the complaint contained a special indorsement in …

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Opinion of the Court
PALMER, J.

PALMER, J.

Otto and Brigitte Devries, the homeowners, timely appeal the final judgment of foreclosure entered by the trial court in favor of CitiMortgage. Determining that CitiMortgage failed-to prove its standing to foreclose, we reverse.

The proper party entitled to enforce a note and foreclose a mortgage is the- holder of the note,, a nonholder in possession who.has the rights of a holder, or a. person not in possession of a lost instrument who has the. right to re-establish the. note pursuant to section 673,3091, Florida Statutes. (2009), Gorel v. Bank of New York Mellon, 165 So.3d 44, 46 (Fla. 5th DCA 2015).

CitiMortgage filed this foreclosure suit in 2010, alleging its standing based on its status as holder of the note, yet the note attached to the complaint.contained a special indorsement in favor of Standard Federal Bank. At trial, CitiMortgage introduced the original note into evidence which contained an additional indorsement: a special indorsement in its favor. CitiMort-gage also introduced a backdated assignment of the note and mortgage. CitiMort-gage’s witness testified that the bank’s records showed that the original note was received by transfer in 2007. The witness did not testify that the indorsements or assignment predated the filing of the complaint: The homeowners argue that the evidence at trial was insufficient to establish that CitiMortgage had standing to foreclose the mortgage at the time the complaint was filed. We agree

First, CitiMortgage presented no evidence that the special indorsement in its favor predated the filing of the complaint. See Eagles Master Ass’n, Inc. v. Bank of Am., N.A., — So.3d -, 40 Fla. L. Weekly D1510, 2015 WL 3915871 (Fla. 2d DCA June 26, 2015) (“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.”).

Second, CitiMortgage’s witness did not testify that the assignment occurred before the complaint was filed. See Lloyd v. Bank of New York Mellon, 160 So.3d 513, 515 (Fla. 4th DCA 2015) (holding that the bank did not establish standing on basis of backdated assignment where the bank’s witness did not testify that assignment predated filing of complaint); see also Matthews v. Fed. Nat’l Mortg. Ass’n, 160 So.3d 131, 133 (Fla. 4th DCA 2015) (“[A] backdated assignment, standing alone, [does not] establish standing.”).

While CitiMortgage contends that the date the assignment was executed was not determinative because it was simply memorializing an earlier transfer, CitiMort-gage presented no evidence in support of this contention, such as evidence that the note aiid mortgage were delivered to Citi-Mortgage in 2007 with the intention of passing title. See generally Jarvis v. Deutsche Bank Nat’l Trust Co., 169 So.3d 194, 196 (Fla. 4th DCA 2015) (stating that *911possession of instrument alone is an insufficient basis to prove standing to foreclose); St. Clair v. U.S. Bank Nat'l Ass’n, 173 So.3d 1045, 1046 (Fla. 4th DCA 2015) (same).

REVERSED and REMANDED for entry of an involuntary dismissal.

SAWAYA and TORPY, JJ., concur.


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