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http://consumerfsblog.com/2016/03/florida-court-holds-foreclosure-invalid-as-mortgagee-did-not-meet-burden-to-prove-standing/

Florida Court Holds Foreclosure Invalid as Mortgagee Did Not

Meet Burden to Prove Standing
Andrew Chan

The District Court of Appeal of the State of Florida, Fourth

District, recently reversed summary judgment of foreclosure in
favor of a mortgagee, holding that the plaintiff mortgagee failed
to satisfy its heightened burden of proving the absence of any
genuine issue of material fact on the issue of standing applicable
because the motion for summary judgment was filed before the
defendant answered the complaint, and the plaintiff mortgagee
was on notice at the time that the defendant was contesting
standing.
A copy of the opinion in Statewide Homeowners
Solutions, LLC v. Nationstar Mortgage, LLC is available at: Link
to Opinion.
A homeowners association (HOA) foreclosed its claim of lien against a homeowner, and a third party company
acquired title after it was the highest bidder at the foreclosure sale.
Before the certificate of title was issued in the HOAs foreclosure action, a mortgagee filed a mortgage foreclosure
action against the subject property. The mortgagees foreclosure complaint alleged that the plaintiff was the servicer
for a trustee bank to whom the note is specifically endorsed.
The note, a copy of which was attached to the complaint, contained two undated special endorsements, one from
the original lender to a non-party and the other from that non-party to the trustee bank for whom the plaintiff was the
servicing agent.
The company that acquired title of the subject property in the HOAs lien foreclosure action moved to intervene as
the owner of the property in the mortgage foreclosure action, and also moved to dismiss the complaint. The
foreclosure buyers motion to dismiss argued among other things that the plaintiff servicer lacked standing to sue.
The trial court granted the motion to intervene, but never ruled on the motion to dismiss.
A second servicer was later substituted for the first servicer as plaintiff in the mortgage foreclosure action. The new
servicer moved for summary judgment, attaching to the motion several affidavits, one of which contained the
statement that the plaintiff holds the promissory note. In response, the foreclosure buyer filed an affidavit
contesting standing.
At the hearing on the plaintiff servicers motion for summary judgment, the plaintiff servicer filed the original note and
mortgage. The foreclosure buyer argued that plaintiff servicer had not met its heightened burden of proof applicable
when a motion for summary judgment is filed before the non-movant filed its answer to the complaint, and also failed
to show that there did not exist a genuine issue of a material fact.
In response, plaintiff servicer argued that it had standing because it was substituted as the plaintiff for the first
servicer; the note was endorsed to the loan owner for whom the plaintiff servicer had a power of attorney.
However, the second servicer did not introduce any affidavit or other evidence reflecting its status as attorney in fact

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or servicer for the loan owner. The trial court nevertheless granted the plaintiff servicers motion for summary
judgment and entered a final judgment in plaintiff servicers favor. The foreclosure buyer moved for rehearing, which
was denied, and it appealed.
The Appellate Court began its analysis by explaining that under Florida Rule of Civil Procedure 1.510(c), [s]ummary
judgment is appropriate only where there is no genuine issue of material fact and if the moving party is entitled to a
judgment as a matter of law. The burden is on the moving party to show conclusively the absence of any
genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a
summary judgment is sought. Notably, a plaintiff who moves for summary judgment before a defendant files an
answer has a difficult burden.
In this situation, the plaintiff must not only establish that no genuine issue of material fact is present in the record as
it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were
permitted to answer the complaint.
The Appellate Court agreed with the foreclosure buyer that the plaintiff servicer failed to show that no answer that it
might file would present a genuine issue of material fact on the issue of standing, relying on its 2012 decision in
Dominko v. Wells Fargo Bank, N.A., which held that it was error to enter summary judgment in favor of the bank
where it had failed to meet its burden [to] show that no answer which the [homeowner] might file could present a
genuine issue of fact.
The Appellate Court reasoned that in the case at bar, as in Dominko, when the plaintiff servicer moved for summary
judgment, the foreclosure buyer had not yet answered the complaint.
In addition, the homeowner in Dominko had moved for summary judgment, challenging the mortgagees compliance
with the pre-suit notice requirement, whereas the foreclosure buyer in the case at bar had filed a motion to dismiss
and an affidavit opposing the motion for summary judgment challenging standing.
Finally, the Appellate Court noted that, like in Dominko, the record reflected that the plaintiff servicer failed to meet its
burden of proof by filing sufficient summary judgment evidence regarding its standing to file suit.
Thus, the final summary judgment in the plaintiff servicers favor was reversed and the case remanded for further
proceedings.

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