At the final hearing on summary judgment, the trial court held thatLiquidation met itsinitial burden to establish standing to foreclose onthe note and mortgage. To demonstrate standing, Liquidationproducedthe original note and mortgage, an undated allonge endorsed in blank,and a mortgage assignment executed on February 6, 2009,with aneffective date of January 15, 2009. The trial court then held there wasno material issue of fact as to standing because the Vidals could notintroduce evidence to dispute the assignment took place. The Vidalsargue the trial court erred in this finding because (1) the original noteand mortgage were not produced at least twenty days prior to thesummary judgment hearing, as required by rule 1.510(c),and (2) theback-dated assignment does not demonstrate, as a matter of law, that alegal or equitable transfer of the note and mortgage occurred prior to thefiling of the complaint.Regarding the violation of rule 1.510(c), the transcript reflects thatcounsel for the Vidals waived this rule, instead deciding to oppose themotion for summary judgment on the merits. As the issue was waived, itcannot be grounds for reversal on appeal.
Azanza v. Private Funding Group
, 24 So. 3d 586, 587 (Fla. 4th DCA2009).We have held that the one who owns and holds the note is entitled toforeclose on the mortgage.
See, e.g., Riggs v. Aurora Loan Servs., LLC
, 36So. 3d 932 (Fla. 4th DCA2010). In filing a mortgage foreclosure suit, aswell as seeking a summary judgment, it is incumbent on the plaintiff tobe in a position to prove he, she, or it owns and holds the note as of thedate suit is filed.“[T]he plaintiff must prove that it had standing to foreclose when thecomplaint was filed.”
McLean v. JP Morgan Chase Bank Nat’l Ass’n
, 79So. 3d 170, 173(Fla. 4th DCA2012). “Standing may be established by either an assignment or an equitable transfer of the mortgage prior to thefiling of the complaint.”
, the bank filed a complaint forforeclosure on May 11, 2009.
at 171. The mortgage reflected themortgagee as a third party. When ordered to provide proof of assignment, the bank filed an assignment of mortgage reflecting aneffective date of May 14, 2009. The bank moved for summary judgmentand filed an affidavit in support of summary judgment.The affidavit didnot state when the note or mortgage was transferred to the bank.
The trial court granted summary judgment, but this Court reversed,holding the record evidence was insufficient to demonstrate the bank hadstanding to foreclose at the time the complaint was filed.