GREGORY MAKI AND ELIZABETH MAKI
v.
GREEN TREE SERVICING, LLC
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A foreclosure plaintiff must present legally sufficient evidence of standing to enforce the promissory note, including proof of a valid chain of transfer from the original lender.
[1] A foreclosure plaintiff seeking to enforce a promissory note must present legally sufficient evidence establishing a valid chain of transfer of the note from the original…
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Join FLexlaw to unlock all legal intelligence“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.”
Court's explanation of why Wilmington failed to establish standing
Wilmington Savings Fund Society, FSB proceeded to trial in a foreclosure action against Gregory and Elizabeth Maki, claiming to be the holder of a pro…
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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 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.
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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Olivera v. Bank OF Am., 141 So. 3d 770 (Fla. 2d DCA 2014)
- Partridge v. Nationstar Mortg., LLC, 224 So. 3d 839 (Fla. 2d DCA 2017)
- Segall v. Wachovia Bank, 192 So. 3d 1241 (Fla. 4th DCA 2016)
- Ulysses Brown v. McNeil, 224 So. 3d 839 (Fla. 1st DCA 2017)