DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
DAVID RIGBY and KATHLYN RIGBY,
Appellants,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007-FXD2 ASSET-BACKED CERTIFICATES, SERIES 2007-FXD2,
Appellee.
No. 4D10-3587
[April 4, 2012]
STEVENSON, J.
This appeal stems from a complaint of foreclosure filed b y the
appellee, Wells Fargo Bank, N.A., as trustee (“Bank”), against the
appellants David Rigby and Kathlyn Rigby. The trial court entered final
summary judgment. Because Bank failed to meet its burden on
summary judgment, we reverse.
The Bank file d its complaint on May 21, 2008, and attached a
mortgage that named Option One Mortgage Corporation (“Option One”)
as the lender. Subsequently, the Bank filed an assignment of mortgage,
from Option One to Bank, dated May 22, 2008, as well as the undated
original note containing a special endorsement in favor of Bank. The
parties proceeded to discovery and Bank sought an admission from the
Rigbys acknowledging that they had previously received notice that the
note and mortgage had been transferred to Bank. The Rigbys failed to
respond to this request. Bank then filed a motion for summary
judgment, attaching an affidavit wherein the affiant swore that Bank was
holder and owner of the mortgage. Based on this record, the trial court
entered summary judgment. A trial court’s entry of summary judgment
is reviewed de novo. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla.
4th DCA 2009).
The Bank failed to establish that it had standing to foreclosure upon
the note. “A crucial element in any mortgage foreclosure proceeding is
that the party seeking foreclosure must demonstrate that it has standing
to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d
170, 173 (Fla. 4th DCA 2012). To establish standing, the plaintiff must
submit the note bearing a special endorsement in favor of the plaintiff,
an assignment from payee to the plaintiff or an affidavit of ownership
proving its status as holder of the note. Servedio v. U.S. Bank Nat’l
Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010). “A party must have
standing to file suit at its inception and may not remedy this defect by
subsequently obtaining standing.” Venture Holdings & Acquisitions Grp.,
LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011).
The Bank has not shown that it was holder of the note at the time the
complaint was filed. The note containing a special endorsement in favor
of Bank was not dated. The assignment of mortgage, dated May 22,
2008, indicates that Bank did not acquire the mortgage until the day
after the complaint was filed. Finally, neither the affidavit, nor the
technical admissions made by the Rigbys, establishes the date on which
Bank acquired possession of the note and there is no evidence in the
record establishing that an equitable transfer of the mortgage occurred
prior to the date the complaint was filed. See McLean, 79 So. 3d at 174
(reversing final summary judgment of foreclosure because appellee bank
failed to establish standing where mortgage was assigned to bank three
days after lawsuit was filed; note contained undated special endorsement
in favor of bank; and affidavit in support of summary judgment failed to
indicate that bank became equitable owner of note and mortgage prior to
date lawsuit was filed).
Reversed.
WARNER and CONNER, JJ., concur.
