78D TEAM, LLC

v.

U.S. BANK N.A., ETC.

Third District Court of Appeal

State of Florida

Opinion filed April¹, 2020. Not final until disposition of timely filed motion for rehearing.

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No. 3D19-1708 Lower Tribunal No. 18-8338

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78D Team, LLC,

Appellant,

vs. U.S. Bank, N.A., etc.,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Martin Zilber, Judge. Jacobs Legal, PLLC, and Bruce Jacobs, for appellant. Burr & Forman LLP, and Nicholas S. Agnello and Matt Mitchell (Fort Lauderdale), for appellee. Before EMAS, C.J., and GORDO and LOBREE, JJ. LOBREE, J.

78D Team, LLC (the “Subsequent Purchaser”) appeals from a payment order entered pursuant to section 702.10(2), Florida Statutes (2018), in foreclosure proceedings in favor of U.S. Bank (the “Mortgagee”). The Subsequent Purchaser challenges the lower court’s purported retroactive and unconstitutional application of section 702.10(2) to proceedings involving a 2004 mortgage, as well as the sufficiency of the lost-note affidavit and allegedly fraudulent assignment. We affirm.

The Subsequent Purchaser concedes—and the record makes irrefutable—that it has never been in privity with any of the parties. Therefore, it lacks standing to challenge the allegedly unconstitutional impairment of the rights of parties to a mortgage with regard to which it was neither a party nor beneficiary. See Green

Emerald Homes, LLC v. 21st Mortg. Corp., No. 2D17-2192, 2019 WL 2398015, at

*4-5 (Fla. 2d DCA June 7, 2019) (affirming the “extension to the mortgage foreclosure context of the hornbook contract law rule that a person who is neither a party to nor an intended third-party beneficiary of a contract has no rights under the contract to enforce”); Sieniarecki v. State, 756 So. 2d 68, 76 (Fla. 2000) (“[C]onstitutional rights are personal in nature and generally may not be asserted vicariously.”).

We find the lost-note affidavit, in conjunction with the other evidence accompanying it, sufficient to show that the Mortgagee was a lawful holder of the note. See Aquasol Condo. Ass’n, Inc. v. HSBC Bank USA, Nat’l Ass’n, No. 3D17-

352, 2018 WL 5733627, at *4 (Fla. 3d DCA Oct. 31, 2018) (“We conclude, as this court and our sister courts have previously held, that HSBC had standing to foreclose if at the time of filing the action it was the holder or owner of the note.”).¹

We also deem the attack on the assignment to be, alternatively, precluded for lack of standing, unsupported by the record, or irrelevant to the Mortgagee’s standing as a holder of the note. See Wells Fargo Bank, Nat’l Ass’n v. Rutledge, 230

So. 3d 550, 552 (Fla. 2d DCA 2017) (subsequent purchaser lacked standing to argue that borrower’s signature on note and mortgage was forged); HSBC Bank USA,

Nat’l Ass’n v. Buset, 241 So. 3d 882, 889, 892 (Fla. 3d DCA 2018) (rejecting unclean hands challenge, as subsequent purchaser had notice of purportedly fraudulent assignment, which was public record valid on its face, and alternatively holding that “even if this assignment were void or voidable, which it is not, the Bank,

as holder of the note, would have the authority to foreclosure the mortgage”).

[T]his issue was recently addressed by this court in HSBC Bank USA, N.A. v. Buset, 241 So. 3d 882 (Fla. 3d DCA 2018). In its briefs, however, Aquasol has failed even to acknowledge, much less address, the Buset opinion. This is all the more curious given the fact that counsel for Aquasol was also counsel of record for Buset in that appeal, so it is difficult to fathom how this failure could be attributed to mere oversight. We take this opportunity to remind Aquasol’s counsel that the Rules of Professional Conduct mandate candor toward the tribunal.

Affirmed.