Braga v. FANNIE MAE | FL 4DCA - We reverse the final judgment of foreclosure because the plaintiff failed to prove that an undated indorsement in blank was placed on an allonge prior to filing the original complaint

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Braga v. FANNIE MAE | FL 4DCA – We reverse the final judgment of foreclosure because the plaintiff failed to prove that an undated indorsement in blank was placed on an allonge prior to filing the original complaint

Braga v. FANNIE MAE | FL 4DCA – We reverse the final judgment of foreclosure because the plaintiff failed to prove that an undated indorsement in blank was placed on an allonge prior to filing the original complaint

EDGAR BRAGA, Appellant,
v.
FANNIE MAE (“FEDERAL NATIONAL MORTGAGE ASSOCIATION”), Appellee.

No. 4D14-1809.
District Court of Appeal of Florida, Fourth District.

April 6, 2016.
Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellant.

H. Michael Muñiz of Kahane & Associates, P.A., Plantation, for appellee.

PER CURIAM.

We reverse the final judgment of foreclosure because the plaintiff failed to prove that an undated indorsement in blank was placed on an allonge prior to filing the original complaint.

CitiMortgage, Inc., filed a foreclosure action against Appellant. Attached to the complaint was a copy of the promissory note, which contained a stamp on the signature page indicating that an allonge was attached. However, no copy of the allonge was included with the complaint. An amended complaint was later filed, substituting Fannie Mae as the named plaintiff and including a copy of the allonge, which contained an undated indorsement in blank. At trial, Fannie Mae’s sole witness testified that he did not know when the allonge was created, nor was he aware of when CitiMortgage became the note’s holder.

The sufficiency of the evidence proving standing to bring a foreclosure action is reviewed de novo. Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950, 951 (Fla. 4th DCA 2014). It is well settled that a plaintiff in a foreclosure case must demonstrate it had standing at the time the complaint was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). When a note is indorsed in blank, it becomes bearer paper and is “negotiated by transfer of possession alone.” Calvo v. U.S. Bank Nat’l Ass’n, 181 So. 3d 562, 564 (Fla. 4th DCA 2015) (quoting § 673.2051(2), Fla. Stat. (2014)). If a plaintiff’s standing derives from its status as a holder, based on an indorsement in blank, the plaintiff must establish that it had possession of the indorsed original note at the time the complaint was filed. Id. An undated indorsement introduced after the complaint was filed, is insufficient, without further evidence, to prove standing at the time the complaint was filed. Id.; see also Balch v. LaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015) (finding plaintiff failed to prove standing where there was no evidence indicating when the indorsement was placed onto the note).

Because Fannie Mae did not prove that CitiMortgage was the note’s holder at the commencement of the action, Fannie Mae failed to establish CitiMortgage’s standing to foreclose when the complaint was filed. Therefore, we reverse the final judgment of foreclosure and remand for entry of an order of involuntary dismissal of the action. See Calvo, 181 So. 3d at 564.

STEVENSON, GROSS and FORST, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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3 Responses to “Braga v. FANNIE MAE | FL 4DCA – We reverse the final judgment of foreclosure because the plaintiff failed to prove that an undated indorsement in blank was placed on an allonge prior to filing the original complaint”

  1. Iam Lazarus says:

    This is so stupid, I can’t stand it any longer … (Aarrghh..)

    Promissory Notes as “Bearer Paper,” CANNOT be foreclosed on “In-Blank.”

    The [alleged] holder is entitled to foreclose, [true] … but isn’t the holder also entitled to not foreclose, too? BEING ENTITLED TO ACT IS NOT CHOOSING TO ACT. One describes a potential action … the other is actually taking the action.

    “Bearer Paper” ENTITLES the HOLDER to ENFORCE the note against its maker … BUT ALSO ENTITLES the Holder to NOT ENFORCE the note against its maker. “Bearer Paper” can be transferred from hand-to-hand.

    Final ENFORCEMENT requires a final ENDORSEMENT … just like cashing a check at the local bank. Enforcing “Bearer Paper” without a final special endorsement … FAILS TO REMOVE THE NOTE FROM COMMERCE … potentially allowing further negotiation & transfer regardless of enforcement by foreclosure. (Duh … Goddamnit!!!)

    EVERY CASE … EVERY JUDGE … EVERY LAWYER (Neil & William, too) … seems to have GROSSLY MISSED THIS CRITICAL POINT … and I can’t stand it any more!!!

    START TEACHING JUDGES THESE NOTES WERE NOT CREATED AS “BEARER PAPER” & CANNOT BE REMOVED FROM COMMERCE UNLESS SPECIALLY ENDORSED PRIOR TO BEING SPECIALLY ENFORCED THROUGH FORECLOSURE …. PERIOD..!

  2. david says:

    BERGEN COUNTY FORECLOSURE “JUDGE” EDWARD A JEREJIAN NOW KNOWN AS THE BANK JUDGE NEED TO BE FORCED BY THE STATE OF NJ TO READ SUCH
    COURT CASSES SO HE STOP BEING IGNORATE OF FORECLOSURE RULES AND WILL STOP RULLING AGAINST POOR HOMEOWNERS WHICH ARE VICTIMS OF
    OF BANK FRAUD WHICH HE ALLOWS THE BANKS IN HIS COURT TO PEPETRATE

  3. Papergate says:

    If “Iam Lazarus” is reading this – I’d love to follow your work I think you’re brilliant! Sincerely, Papergate

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