DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MIGUEL TILUS, ALTA TILUS, ROSE A. JOASEUS and KESNER
JOASEUS,
Appellants,
v.
AS MICHAI LLC,
Appellee.
No. 4D13-3616
[March 11, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Kenneth Stern, Senior Judge; L.T. Case No.
502012CA016433XXXXMB.
Siam J. Joseph, Greenacres, for appellants.
J. Andrew Baldwin and Gabriel Pinilla of The Solomon Law Group, P.A.,
Tampa, for appellee.
PER CURIAM.
The defendants appeal a final judgment of foreclosure entered after the
trial court granted the plaintiff’s motion for summary judgment. We
reverse because a genuine issue of material fact remains as to whether the
plaintiff had standing at the inception of the lawsuit.
The standard of review of an order granting summary judgment is de
novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey,
50 So. 3d 1205, 1206 (Fla. 4th
DCA 2010).
“The party seeking foreclosure must present evidence that it owns and
holds the note and mortgage in question in order to proceed with a
foreclosure action.” Lizio v. McCullom,
36 So. 3d 927, 929 (Fla. 4th DCA
2010). The plaintiff must prove that it had standing to foreclose at the
time the lawsuit was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n,
79 So. 3d 170, 173 (Fla. 4th DCA 2012).
Where the plaintiff files the original note after filing suit, an undated
blank endorsement on the note is insufficient to prove standing at the time
the initial complaint was filed. Bristol v. Wells Fargo Bank, Nat’l Ass’n,
137 So. 3d 1130, 1132 (Fla. 4th DCA 2014). Moreover, an assignment of
mortgage, even if executed before the foreclosure action commenced, is
insufficient to prove standing where the assignment reflects transfer of
only the mortgage, not the note.
Id. at 1133. The mortgage follows the
assignment of the promissory note, but an assignment of the mortgage
without an assignment of the debt creates no right in the assignee.
Id.
Here, the plaintiff’s documents failed to demonstrate that the plaintiff
had standing to foreclose at the time it originally filed suit. The undated
blank endorsement on the original note, which was filed over a month after
the plaintiff initially brought suit, was insufficient to prove that the
plaintiff had standing to enforce the note at the inception of the lawsuit.
Likewise, the “Assignment of Mortgage” from DLJ Mortgage Capital to the
plaintiff reflected a transfer of only the mortgage, not the note. Because
there was no proof that the plaintiff was entitled to enforce the note when
it filed the initial complaint, the Assignment of Mortgage to the plaintiff
was insufficient to establish the plaintiff’s standing at the inception of the
case. Thus, a genuine issue of material fact still exists as to when the
plaintiff took possession of the note.
We reverse the final judgment of foreclosure and remand for further
proceedings. In light of this disposition, we decline to address the
defendants’ other arguments for reversal.
Reversed and Remanded.
GROSS, TAYLOR and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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