In short: The homeowner lost. In Lopez v. Deutsche Bank, the case began as IndyMac Federal’s lost-note suit; Deutsche Bank, substituted later, claimed it held the note since 2006, though its trust closed the day before the loan was made. The Third DCA affirmed the foreclosure judgment without opinion in 2013.
The Facts
Because the Third District affirmed without an opinion, what follows is what the record and the arguments showed, as described for the oral argument, not appellate findings.
The foreclosure was filed in Miami-Dade circuit court by IndyMac Federal, which claimed it owned the note and that the note was lost. About two years later, Deutsche Bank National Trust Company, as trustee, was substituted as plaintiff and claimed it had held the note since 2006. The homeowner, Rosa Lopez, pointed out that the trust’s closing date was February 1, 2006, the day before her loan was made, so the loan could not have gone into the trust on its own terms.
She also denied receiving the pre-suit default letter. The record, as described, showed only that a letter had been generated, not that it was mailed. The trial court entered judgment for the bank, and she appealed.
The Decision
The panel (Judges Rothenberg, Emas and Fernandez) affirmed per curiam without opinion, so the foreclosure judgment stood. The court did not say why. It may have found the evidence enough to show standing despite the shifting story, treated the trust closing date as beside the point, found an issue not preserved, or rested on something else.
A PCA is not precedent. It does not hold that a plaintiff can switch from a lost-note claim to a holder claim, that a trust’s closing date never matters, or that proof a letter was generated is proof it was mailed.
The Law
Standing in a Florida foreclosure turns on whether the plaintiff was entitled to enforce the note when the suit was filed. Under section 673.3011, that means the holder, a nonholder in possession with a holder’s rights, or a person entitled to enforce a lost note under section 673.3091. A substituted plaintiff generally must show that the original plaintiff had standing at filing, or that it did. A complaint saying the note was lost, followed by a successor claiming it held the note all along, is an inconsistency the plaintiff has to explain with evidence. Since 2013, section 702.015 has also required residential foreclosure plaintiffs to plead their status and certify possession of the original note.
Arguments built on a pooling and servicing agreement’s closing date have generally fared poorly for Florida borrowers, because the statute asks who holds or may enforce the note, not whether the trust followed its investor rules. The date matters more as evidence: it can contradict the plaintiff’s own story about when it got the note. As for the default letter, a condition precedent the borrower specifically denies must be proven, and proof of mailing usually requires more than a record that the letter was created.
Current law (2026): Section 702.015 (effective July 1, 2013, shortly before this decision) now requires residential foreclosure complaints to plead the plaintiff’s holder status and certify possession of the original note; confirmed on flsenate.gov 2026 Statutes. Sections 673.3011 and 673.3091 text confirmed current.
Lessons
- Compare every version of the plaintiff’s story: the original complaint, any lost-note count, the substitution motion and the trial testimony.
- Use a trust closing date as evidence that contradicts the plaintiff’s own timeline, not as a free-standing defense.
- If you did not receive the default letter, deny the condition precedent specifically and press the bank for proof of mailing, not just creation.
- Make sure the trial record shows each objection; an appellate court cannot fix what was not raised below.
Source: Lopez v. Deutsche Bank National Trust Co., No. 3D12-3046 — Fla. 3d DCA (September 4, 2013).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Note Went Into the Trust Before It Existed? Standing Fight | Lopez v. Deutsche Bank, 3D12-3046
Go Deeper
- Foreclosure Standing on Appeal in Florida: Watch the Arguments Over Who Owns the Note
- The Default Letter Defense in Florida Foreclosures: Paragraph 22, HUD, and VA Pre-Suit Notice
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
Does a trust's closing date matter in a Florida foreclosure?
Usually not by itself. Florida courts ask whether the plaintiff held or could enforce the note when it sued, not whether the trust followed its own rules. A closing date can still matter as evidence contradicting the plaintiff’s account of when it got the note. In Lopez v. Deutsche Bank the argument did not win a reversal.
Can a foreclosure plaintiff claim a lost note and later claim it held the note?
The plaintiff must explain the inconsistency with evidence. A substituted plaintiff generally must prove standing existed when the case was filed. In Lopez, the suit began as a lost-note claim and the substituted trustee later said it held the note since 2006. The Third DCA affirmed without opinion, deciding nothing about that issue.
Is proof that a default letter was generated enough to prove it was mailed?
Not necessarily. Florida courts generally require evidence of actual mailing, such as mailing records or testimony about a routine mailing practice, when the borrower specifically denies receiving notice. Lopez raised this issue, but the PCA gives no ruling on it.
What does a per curiam affirmance (PCA) mean in Florida?
It means the appellate court upheld the trial court’s judgment with the single word affirmed and no opinion. The losing side gets no explanation, the ruling below stands, and the decision is not precedent for any legal point. In Lopez v. Deutsche Bank, the PCA left the trial court’s result in place without endorsing any particular reason for it.
Talk to a Florida foreclosure defense lawyer
Weidner Law, P.A. has defended Florida homeowners in foreclosure and foreclosure appeals for more than 25 years. If you need a foreclosure defense lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
