DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
BAC HOME LOANS SERVICING, LP, f/k/a COUNTRYWIDE HOME
LOANS SERVICING, L.P.,
[November 4, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard L. Oftedal, Judge; L.T. Case No.
Peter Ticktin, Josh Bleil, Michael Vater, Heather Cherepkai, and
Kendrick Almaguer of The Ticktin Law Group, P.A., Deerfield Beach, for
Tricia J. Duthiers and Kristen A. Tajak of Liebler Gonzalez & Portuondo,
Miami, for appellee Bank of America, N.A., successor by merger to BAC
Home Loans Servicing, LP, f/k/a Countrywide.
We again consider the question of standing to foreclose upon a
mortgage. Diana Jelic (“Owner”) signed a mortgage and note in 2005. In
2008, she stopped making payments on the note. BAC Home Loans
Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP (and since
merged into Bank of America, N.A.) (“the Bank” when used collectively)
initiated a foreclosure proceeding. Owner challenged the Bank’s standing
to foreclose along with its compliance with contractual conditions
precedent in the mortgage and note. For the reasons given below, we agree
with Owner that the Bank did not properly demonstrate its standing and
therefore reverse the trial court’s Final Judgment of Foreclosure.
Owner initially executed a note and mortgage in favor of Sterling Bank.
The note was later indorsed to Countrywide Bank. At some point, the note
was indorsed from Countrywide Bank to Countrywide Home Loans
Servicing. But the copy of the note attached to the complaint shows only
the first indorsement (to Countrywide Bank). The second indorsement
appears only on the note introduced at trial. No testimony was introduced
giving the date on which the second indorsement was made, or stating that
Countrywide Home Loans Servicing held the note at the time of the
The Bank provides two arguments as to how it proved that it was the
holder of the note at the time the complaint was filed. Even if we ignore
the fact that those arguments seem to contradict each other and instead
address each individually, the Bank still has failed to show that it was the
holder as of the date that the complaint was filed.
The Bank’s first argument is that the indorsements alone transferred
the note into its control. However, the failure to introduce testimony
establishing the date the second indorsement was made is fatal to this line
of reasoning. We have said before, and apparently need say again: if an
indorsement is undated and appears for the first time after the complaint
is filed, some evidence must be introduced that will support a finding that
the indorsement was made prior to the complaint’s filing. Tilus v. AS
Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (“Where the
plaintiff files the original note after filing suit, an undated blank
endorsement on the note is insufficient to prove standing at the time the
initial complaint was filed”); Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950,
951 (Fla. 4th DCA 2014); LaFrance v. U.S. Bank Nat’l Ass’n, 141 So. 3d
754, 756 (Fla. 4th DCA 2014) (“A plaintiff’s lack of standing at the
inception of the case is not a defect that may be cured by the acquisition
of standing after the case is filed and cannot be established retroactively
by acquiring standing to file a lawsuit after the fact.”) (internal quotation
marks and citation omitted).
Statements that make exclusive use of the present tense (here: “Bank
of America is the holder of the note” (emphasis added)) are insufficient.
What is required is some evidence that the foreclosing party was the holder
at the appropriate time. Although the Bank’s sole witness did say that the
Bank “owned the loan prior to the filing of the complaint,” she immediately
corrected herself, answering with “No” when asked “So Bank of America
never acted as the owner of this loan?” Because of that retraction, we
cannot hold that the Bank introduced the necessary evidence to prove that
the Bank held the note at the time the initial complaint was filed.
The Bank’s second argument as to how the note transferred is that a
pre-complaint assignment of the mortgage to Countrywide Home Loans
Servicing is evidence that the note was also transferred before the
complaint. But that is not how the law operates. Again we repeat: the
mortgage follows assignment of the note. Bristol v. Wells Fargo Bank, Nat’l
Ass’n, 137 So. 3d 1130, 1133 (Fla. 4th DCA 2014). The assignment of a
mortgage cannot serve as evidence that the note was also transferred, even
though a transfer of the note usually will serve as a transfer of the
mortgage. Lamb v. Nationstar Mortg., LLC, 40 Fla. L. Weekly D1912 (Fla.
4th DCA Aug. 19, 2015) (“A bank does not have standing to foreclose where
it relies on an assignment of the mortgage only.”).
As part of this second argument, Bank also argues that one specific line
in the mortgage assignment transferred the note itself. But again, Florida
law does not allow for a transfer in this method. To transfer a note, there
must be an indorsement, which itself must be “on [the] instrument” or on
“a paper affixed to the instrument.” § 673.2041(1), Fla. Stat. Here, the
signature on the mortgage assignment did not constitute an indorsement
of the note because it was not on the note or an attached paper.
The Bank has failed to establish its standing to foreclose. We therefore
need not consider the Owner’s argument based on conditions precedent.
The judgment of the trial court is reversed.
CIKLIN, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing