NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL B. DICKSON and
MAGDALENA DICKSON,
Appellants,
v. Case No. 2D14-1137
ROSEVILLE PROPERTIES, LLC,
Appellee.
___________________________________
Opinion filed November 6, 2015.
Appeal from the Circuit Court for
Manatee County; Thomas M. Gallen,
Senior Judge.
Michael B. Dickson and Magdalena
Dickson, pro se.
Peter P. Hagood of Hagood & Garvey,
Maitland, for Appellee.
SALARIO, Judge.
In this residential foreclosure action, Michael and Magdalena Dickson
appeal from a final judgment in favor of Roseville Properties, LLC, rendered after a
nonjury trial. Prior to trial, Roseville was substituted as plaintiff in place of Nationstar
Mortgage, LLC, which originally filed the action. Because Roseville failed to prove at
trial that Nationstar had standing when it filed suit, we reverse and remand with
instructions to enter an order of involuntary dismissal.
In September 2007, the Dicksons borrowed $224,000 from Ameripath
Mortgage Corporation to finance the purchase of a residence. The debt was evidenced
by a note showing the Dicksons as borrowers and Ameripath as lender and secured by
a mortgage showing the Dicksons as borrowers and Mortgage Electronic Registration
Systems, Inc. (MERS), as nominee for Ameripath as lender. Beginning in November
2009, the Dicksons defaulted on the note by failing to make their mortgage payments.
On July 18, 2011, Nationstar filed a verified foreclosure complaint against
the Dicksons. It alleged that it was entitled to enforce the note and mortgage but did not
allege the factual or legal basis for that right. The only exhibits to the complaint were
copies of the note and mortgage, which, because they made no reference to Nationstar,
also failed to show the basis of its asserted right to foreclose. The Dicksons filed
affirmative defenses alleging, among other things, that Nationstar lacked standing to
enforce the note because it failed to establish any basis for doing so.
On October 26, 2012, Roseville filed a motion to substitute itself for
Nationstar as plaintiff. It alleged that after the complaint was filed, Nationstar’s interest
in the mortgage was transferred to Roseville. The Dicksons responded that Roseville
lacked standing because Nationstar, from which Roseville acquired any rights it had,
also lacked standing. The trial court granted the motion, and Roseville was substituted
for Nationstar as the plaintiff in this case.
Roseville later filed the original note, which contained no endorsement,
and the original mortgage. It also filed a document which reflected an assignment of the
Dickson’s mortgage from Kondaur Capital Corporation to Roseville on August 16, 2012.
Roseville also served the Dicksons with a set of requests for admissions. Those
requests sought admissions that Roseville was the owner of the note, the current holder
of the note, the owner of the mortgage, and the current holder of the mortgage. The
Dicksons failed to answer the requests.
On September 6, 2013, the Dicksons filed a motion to dismiss alleging
that Roseville lacked standing to foreclose because Nationstar lacked such standing at
the time the suit was filed. They attached copies of six assignments of their mortgage,
all of which were dated after the foreclosure complaint was filed on July 18, 2011: (1) an
assignment from MERS as nominee for Ameripath to U.S. Bank, N.A., “as trustee for
the Maiden Lane Asset Backed Securities I Trust 2008-1, c/o Nationstar” (U.S. Bank c/o
Nationstar) dated September 22, 2011; (2) an assignment from MERS as nominee for
Ameripath directly to Nationstar dated September 23, 2011; (3) an assignment from
U.S. Bank c/o Nationstar to Kondaur dated December 16, 2011; (4) an assignment from
U.S. Bank c/o Nationstar to Selene Finance dated February 2, 2012; (5) an assignment
from Nationstar to Kondaur dated April 25, 2012; and (6) an assignment from Kondaur
to Roseville dated August 16, 2012. Six days later, the trial court entered an order
denying the Dicksons’ motion. On September 18, 2013, the Dicksons filed a second
motion to dismiss for lack of standing. The trial court again denied the motion.
The trial court held a bench trial on February 10, 2014. As its sole
witness, Roseville called Taisha Cintron, a Roseville account representative. She
testified that she was familiar with the Dicksons’ account, that their file was kept in the
ordinary course of business, and that the loan was in default. Through Ms. Cintron,
Roseville introduced the Dicksons’ loan history into evidence. Ms. Cintron did not
provide any testimony concerning Nationstar’s entitlement to foreclose at the time suit
was filed or Roseville’s entitlement to foreclose at the time of trial. At the close of
Roseville’s case, the Dicksons moved to dismiss based on Roseville’s lack of standing.
The trial court denied this motion and granted judgment in favor of Roseville.
Where, as here, the defendant asserts a lack of standing as a defense to
foreclosure, it is incumbent upon the plaintiff to prove its standing at trial. Gonzalez v.
Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 253-54 (Fla. 2d DCA 2012). This
requires the plaintiff to show that it is the “holder” of the note or a person acting on
behalf of the holder. Mortg. Elec. Regis. Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla.
2d DCA 2007). If the plaintiff is not the original lender, it may establish its standing as a
holder “by submitting a note with a blank or special endorsement, an assignment of the
note, or [with a sworn statement] otherwise proving the plaintiff’s status as the holder of
the note.” Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013)
(citing McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA
2012)). A plaintiff that is not a holder, such as a mortgage servicer, can establish
standing through proof that it is authorized to enforce the note on behalf of the holder.
Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642-43 (Fla. 2d DCA 2015).
For better or for worse, it is settled that it is not enough for the plaintiff to
prove that it has standing when the case is tried; it must also prove that it had standing
when the complaint was filed.1 May v. PHH Mortg. Corp., 150 So. 3d 247, 248-49 (Fla.
2d DCA 2014); see also Focht, 124 So. 3d at 311-12 (describing “a long line of supreme
court cases” requiring that a plaintiff have standing at the inception of the case). In
Russell, we applied the rule requiring proof of standing at inception of the case to a
substituted plaintiff and held that it was required to demonstrate that the original plaintiff
had standing when the suit was filed. 163 So. 3d at 642. There, the original plaintiff
alleged in its complaint that it was the servicer of the mortgage at issue, and it later
sought to substitute a new plaintiff in its place based on an assignment of mortgage to
that new plaintiff. Id. at 641. The defendant raised lack of standing as an affirmative
defense, and at trial the substituted plaintiff failed to show that the original plaintiff had
standing either as a holder or as servicer authorized by the holder to enforce the note.
Id. at 641-42. Because the substituted plaintiff failed to prove the original plaintiff’s
standing at inception, we reversed the final judgment of foreclosure. Id. at 643.
This case is indistinguishable from Russell. The record is devoid of any
evidence that Nationstar had standing when it filed suit. The original note and mortgage
filed with the trial court contain no indication that Nationstar was the holder at the time
the complaint was filed. There is no documentary evidence to indicate that Nationstar
had the right to enforce the note on behalf of someone else at the time the complaint
was filed. Roseville presented no testimony to show that Nationstar had standing at
inception. On the contrary, the only evidence in this record related to Nationstar—the
postfiling assignments of mortgage from MERS to U.S. Bank c/o Nationstar Mortgage,
LLC and, subsequently, to Nationstar directly—could establish only that Nationstar
acquired standing in some manner after it filed the complaint.
Roseville asserts that because the Dicksons failed to respond to its
requests for admissions about its status as the “owner” and “current holder” of the note
and mortgage, those requests are deemed admitted and its standing is proved. See
Fla. R. Civ. P. 1.370(a), (b) (providing that unanswered requests for admission are
deemed admitted and that any matter admitted is conclusively established unless the
court permits withdrawal or amendment). The problem with this argument is that
Roseville did not propound any requests related to whether Nationstar was either the
holder of the note or acting on behalf of the holder of the note at the time it filed suit. Its
requests went solely to whether Roseville was the “owner” and “current holder” of the
note and mortgage. The Dicksons’ technical admissions of those requests establishes
at most that Roseville had standing when the requests were served and the Dicksons
failed to answer them, not that Nationstar had standing when it filed suit.2 See Russell,
163 So. 3d at 643 (rejecting as proof of standing at inception a power of attorney dated
eighteen months after the complaint was filed).
Because Roseville failed to prove standing at inception of the suit, the trial
court erred in granting it a final judgment. In light of Roseville’s failure of proof, the trial
court was obliged to grant the Dicksons the dismissal they sought. See id.; May, 150
So. 3d at 249. Accordingly, the judgment below is reversed and the case is remanded
to the circuit court with instructions to enter an order of involuntary dismissal. This
disposition renders the numerous other issues the Dicksons have raised on appeal
moot, and we therefore decline to address them.
Reversed and remanded with instructions.
NORTHCUTT and LaROSE, JJ., Concur.
footnotes:
1The rule requiring a plaintiff to prove its standing at the inception of suit at
any point up to and through trial does present difficult issues both as a matter of legal
doctrine and as a matter of practical application. See Focht, 124 So. 3d at 312-13
(Altenbernd, J., concurring).
2The Dicksons filed with the trial court a “motion to strike” the requests for
admissions, alleging that they never received them. The trial court denied that motion.
The Dicksons have not appealed that denial.
