DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ROSANNA GUZMAN and FRANCISCO GUZMAN,
Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for
INDYMAC INDX MORTGAGE LOAN TRUST 2004-AR8 Mortgage Pass-
Through Certificates Series 2004-AR8, et al.,
Appellees.

No. 4D14-2509

[November 25, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mark E. Polen, Senior Judge; L.T. Case No. CACE-
10044959 (11).

Samuel D. Lopez of Samuel D. Lopez, P.A., Pembroke Pines, for
appellants.

Russell R. O’Brien and Manuel S. Hiraldo of Blank Rome LLP, Fort
Lauderdale, for appellee Deutsche Bank National Trust Company.

KLINGENSMITH, J.

Rosanna and Francisco Guzman (“appellants”) appeal a final
judgment of foreclosure in favor of Deutsche Bank National Trust
Company (“appellee”), and challenge appellee’s standing to bring suit.
They argue the trial court erred by ruling that appellee had standing to
foreclose because appellee did not provide evidence that it was in
possession of an allonge and a blank-endorsed note at the time it filed
the initial complaint. Because appellee failed to prove that it possessed
the right to foreclose when the initial complaint was filed, we reverse. We
see no need to address the other issues raised.

Appellants originally executed a mortgage agreement and promissory
note with Grimaldi Capital Funding (“Grimaldi”). After appellants
defaulted on their payments, appellee filed its initial complaint for
foreclosure attaching both the note and the mortgage on the property.
However, the attached note did not contain any endorsements, nor did
the documents reflect that there had been an assignment of the mortgage
from Grimaldi to appellee. Even though Count I of the complaint for
foreclosure alleged that appellee was the holder and owner of both the
note and mortgage, appellee brought a declaratory judgment action in
Count II against Grimaldi, admitting that it had doubts as to its rights in
the mortgage because Grimaldi had not executed an assignment of the
mortgage to appellee. Upon agreement of the parties, the trial court
dismissed the complaint with leave for appellee to file an amended
pleading.

Appellee then filed an amended complaint alleging only one count of
foreclosure against appellants and abandoning the count for declaratory
relief. This time, appellee claimed that Grimaldi had executed an allonge
bearing a special endorsement in favor of IndyMac Bank, F.S.B.
(“IndyMac”),1 which then later endorsed the note in blank. The note
bearing the blank endorsement from IndyMac, the allonge, and the
mortgage were all attached to the amended complaint. Neither the
special endorsement on the allonge nor the blank endorsement on the
note was dated.2

During the non-jury trial, a loan analyst for appellee’s servicer, Ocwen
Loan Servicing (“Ocwen”), testified for appellee. Ocwen held all of the
records regarding appellant’s loan, which it had acquired from the prior
servicer, IndyMac. The analyst could not provide dates for when the
allonge containing the special endorsement from Grimaldi to IndyMac
was created, or for when IndyMac placed the blank endorsement on the
back page of the note. Moreover, when the trial judge asked appellee’s
counsel how the court could be certain that the allonge and the blank
endorsement were not created between the time the initial complaint was
filed and the time the amended complaint was filed, counsel responded
that he could not prove that both the allonge and the blank endorsement
predated the filing of the initial complaint, or that appellee possessed the
note and mortgage prior to filing the initial complaint.

1IndyMac became involved with the property as the servicer for the loan, and
was the entity that sent the default letter to appellants after they stopped
making their mortgage payments.

2 The blank endorsement from IndyMac appears to be on a separate, otherwise
blank page. However, testimony elicited during the trial revealed that this page
was really the back-side of the fourth page of the note. No explanation was ever
offered for why the endorsements were not both placed on the allonge, or, in the
alternative, both placed on the back of the fourth page.

Counsel for appellee argued that these documents were in appellee’s
possession at the time the amended complaint was filed, and because the
allonge and note were attached to the amended complaint, they related-
back to the date of the initial complaint’s filing, thus establishing
appellee’s standing to foreclose. The trial court accepted appellee’s
relation-back argument, ruled that appellee had standing to bring suit,
and rendered final judgment of foreclosure in favor of appellee. This was
error.

In a foreclosure action, a “‘plaintiff must prove that it had standing to
foreclose when the complaint was filed.’” Vidal v. Liquidation Props., Inc.,

104 So. 3d 1274

, 1276 (Fla. 4th DCA 2013) (quoting McLean v. JP
Morgan Chase Bank Nat’l Ass’n,

79 So. 3d 170

, 173 (Fla. 4th DCA 2012)).
A party must prove it has “standing to bring a mortgage foreclosure
complaint by establishing an assignment or equitable transfer of the note
and mortgage prior to instituting the complaint.” Joseph v. BAC Home
Loans Servicing, LP,

155 So. 3d 444

, 446 (Fla. 4th DCA 2015) (citing
McLean, 79 So. 3d at 173).

For a plaintiff to qualify as a holder of a promissory note, the note
must either list the plaintiff as the payee, or it “must bear a special
endorsement in favor of the plaintiff or a blank endorsement.” McLean,
79 So. 3d at 173. Where a promissory note filed after the initial
complaint does not include the date upon which the endorsement was
made, the plaintiff must provide “record evidence proving that it had the
right to enforce the note on the date the complaint was filed.” See id.
This evidence may be supplied by witness testimony at trial. Lamb v.
Nationstar Mortg., LLC, No. 4D13-3125,

2015 WL 4930268

, at *1 (Fla. 4th
DCA Aug. 19, 2015) (“‘A witness who testifies at trial as to the date a
bank became the owner of the note can serve the same purpose as an
affidavit of ownership.’” (quoting Sosa v. U.S. Bank Nat’l Ass’n, 153 So.
3d 950, 951 (Fla. 4th DCA 2014))).

“[P]ossession of the original note, indorsed in blank, [is] sufficient
under Florida’s Uniform Commercial Code to establish that [a party is]
the lawful holder of the note, entitled to enforce its terms.” Riggs v.
Aurora Loan Servs., LLC,

36 So. 3d 932

, 933 (Fla. 4th DCA 2010).
Therefore, to enforce a note endorsed in blank, a foreclosing party must
show that they had possession of the note at the inception of the lawsuit.

Alternatively, foreclosing parties may present an allonge to establish
standing. “‘An allonge is a piece of paper annexed to a negotiable
instrument or promissory note, on which to write endorsements for
which there is no room on the instrument itself. Such must be so firmly
affixed thereto as to become a part thereof.’” Seffar v. Residential Credit
Solutions, Inc.,

160 So. 3d 122

, 125 (Fla. 4th DCA 2015) (quoting Booker
v. Sarasota, Inc.,

707 So. 2d 886

, 887 n.1 (Fla. 1st DCA 1998)). “If the
note or allonge reflects on its face that the endorsement occurred before
the filing of the complaint, this is sufficient to establish standing.”
McLean, 79 So. 3d at 174.

Appellee argues that the note attached to the initial complaint
actually had the endorsement on the back of it, proving that it had
standing at the time it filed the initial complaint. Here, it is undisputed
that there were no endorsements on the note attached to appellee’s initial
complaint, and no affixed allonges. When appellee filed its amended
complaint, it attached for the first time a copy of the note bearing an
undated blank endorsement from IndyMac, and an allonge bearing an
undated special endorsement from Grimaldi to IndyMac.

No evidence was presented at trial, either documentary or testimonial,
that the blank endorsement from IndyMac was present on the back of
the note attached to the initial complaint. Moreover, the analyst never
testified as to when the endorsements were placed on the allonge or the
original note, and therefore did not provide any evidence that the
endorsements predated the filing of the initial complaint or that appellee
possessed the endorsed documents before it was filed. When specifically
asked if appellee acquired the blank note prior to the filing of the initial
complaint, the analyst responded:

There is no evidence to indicate to the contrary. I mean it
has always been part of the trust. This one has always been
part of the trust. . . .

….

. . . I believe our [business] records speak for themselves.
. . . I don’t have specific documents that would say that, you
know, when all of this stuff happened. I don’t have that with
me today.

Because neither the note attached to the initial complaint in the
appellate record nor the other documents in evidence prove that the
blank endorsement from IndyMac was on the back of the fourth page of
the note when the initial complaint was filed, this court cannot
independently draw the conclusion that it was, in fact, there. We have
held repeatedly that a party cannot establish standing after it has filed
its initial complaint. See, e.g., 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.’” (quoting McLean,
79 So. 3d at 173)).

Allowing documents attached to an amended complaint which purport
to prove standing to be given retroactive effect back to the date of original
filing, as appellee urges us to do here, would be inimical to the
requirements of pre-suit ownership for standing in foreclosure cases.
See Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.
2d 1281, 1286 (Fla. 2d DCA 2005) (stating that the “relation back” rule
found in Florida Rule of Civil Procedure 1.190(c) “does not permit a party
to establish the right to maintain an action retroactively by acquiring
standing to file a lawsuit after the fact”).

We have confirmed the well-settled principle that standing is acquired
at the inception of the lawsuit in several opinions. As we stated in one
recent case under somewhat analogous facts:

Here, the Trust alleged standing as owner and holder of
the note and mortgage in both the original and amended
complaint. Because it was not the original named payee, it
had to prove possession of the original note endorsed in its
favor or in blank before the filing of the original complaint.
When the Trust filed the original complaint, it attached a copy
of an unendorsed note payable to AWL. Although it later filed
an original note and a copy of the original note, both of which
had a blank endorsement, neither was dated. And, the
Trust’s witness did not know when the endorsement was
placed on the note.

….

From the sequence of these events, it is clear that the
Trust did not have standing when it filed the complaint in
September 2007. Wright v. Deutsche Bank Nat’l Trust Co.,

152 So. 3d 1289

(Fla. 4th DCA 2015). The trial court erred
in entering a final judgment of foreclosure in favor of the
Trust.

Peoples v. Sami II Trust 2006-AR6, No. 4D14-2757,

2015 WL 5948218

, at
*2 (Fla. 4th DCA Oct. 14, 2015) (emphasis added).

Since there is no evidence to support appellee’s contention that the
endorsements in question were on the allonge and the note prior to the
inception of the lawsuit, or that appellee was in possession of these
endorsed documents when the initial complaint was filed, appellee has
failed to demonstrate that it had standing to bring this foreclosure suit.

Reversed.

DAMOORGIAN and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

Comments

comments