The evidence will also show that: (1) the note attached to Plaintiff’s complaint does not contain any endorsement, either in blank or specifically to Plaintiff which would confer onto Plaintiff the status of “holder” of the note (Feltus, infra); (2) that the assignment of mortgage post-dated the filing of the complaint and is therefore invalid to convey standing under Vidal; and (3) that Plaintiff’s witness is unable to testify, based upon the witness’s lack of personal knowledge, that there was an “equitable” assignment of the debt prior to the day the lawsuit was filed. Consequently, Plaintiff lacked standing to sue on the day the lawsuit was filed and its action must be dismissed. (See Jeff Ray, infra)
Finally, Plaintiff’s complaint itself fails to state a cause of action and therefore must be dismissed for the following reasons: (1) it contains no allegation that Plaintiff is the “holder” of the note and mortgage or the holder’s “representative” (see Bednarek); (2) the exhibits attached to the complaint are repugnant to the pleading’s allegations; and (3) a copy of the “re-recorded” mortgage sued upon was not attached to the complaint. Further, because the evidence has closed and the parties have progressed to arguments on Defendant’s motion to dismiss and motion for judgment in his favor, Plaintiff is procedurally barred from amending its complaint.(Schopler Arky Freed,
Therefore, there is only one course of action the Court can take at this point: dismissal of Plaintiff’s action which does not necessarily bar to the filing of a new lawsuit pursuant to Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) and US Bank National Ass’n v. Bartram, 39 Fla. L. Weekly D871 (Fla. 5th DCA Apr. 25, 2014).All cases decided in equity are predicated on the timeless maxim that “he who seeks equity must do equity.” Turnberry Investments, Inc. v. Streatfield, 48 So. 3d 180, 185 (Fla. 3d DCA 2010).
Indeed, Foreclosure on an accelerated basis may be denied when the right to accelerate has been waived or the mortgagee estopped to assert it, because of conduct of the mortgagee from which the mortgagor (or owner holding subject to a mortgage) reasonably could assume that the mortgagee, for or upon a certain default, would not elect to declare the full mortgage indebtedness to be due and payable or foreclose therefore; or where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned; or where the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee’s election to accelerate has been given (by actual notice or by filing suit to foreclose for the full amount of the mortgage indebtedness) or where there was intent to make timely payment, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period. Kimmick v. U.S. Bank National Association, 83 So. 3d 877, 881 (Fla. 4th DCA 2012) (quoting Barnes v. Resolution Trust Corp., 664 So.2d 1171, 1172-73 (Fla. 4th DCA 1996)). Bold emphasis added.
Here, in order to invoke the equity jurisdiction of this Court, Plaintiff was required to alert the Court that the very mortgages it was suing upon had been forged, alerted, and fabricated. Instead, the Plaintiff entirely ignores all of the relevant and operative facts that are the foundation upon which their own foreclosure is built. This court simply cannot ignore the fact that Plaintiff ignores and fails to disclose to the court the legally operative facts and documents upon which their own foreclosure case is built.
- It is axiomatic that a foreclosing plaintiff must own and possess the note and mortgage prior to the filing of its foreclosure complaint in order for that party to have standing to sue. See Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (“Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”); Gonzalez v. Deutsche Bank National Trust Company, 95 So. 3d 251, 253-54 (Fla. 2d DCA 2012) (reversing summary judgment where foreclosing plaintiff “failed to establish its standing by showing that it possessed the note when it filed the lawsuit.”). See also McLean v. JP Morgan Chase, 79 So. 3d 170, 174 (Fla. 4th DCA 2012) (“the plaintiff must prove that it had standing to foreclose when the complaint was filed.”); Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (reversing summary judgment of foreclosure because “[t]he Bank has not shown that it was holder of the note at the time the complaint was filed.”); Hall v. Reo Asset Acquisitions, LLC, 84 So. 3d 388 (Fla. 4th DCA 2012) (reversing summary judgment on the basis of McLean.); Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990) (holding that a complaint to foreclose a mortgage failed to state a cause of action when it was filed because the assignment of mortgage to the plaintiff was dated four months after the lawsuit was filed.)
- “Where the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit.” Vidal v. Liquidation Properties, Inc., 104 So. 3d 1274, 1277 (Fla. 4th DCA 2013) (citing Mclean, 79 So. 3d at 174). Bold emphasis added. See also Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310-11 (Fla. 2d DCA 2013) (providing that “Wells Fargo was required to submit evidence that it was in possession of the original note with the blank endorsement at the time it filed the complaint to establish standing”); Zervas v. Wells Fargo Bank, N.A., 93 So. 3d 453, 455 (Fla. 2d DCA 2012) (reversing summary judgment of foreclosure, in part, because “there is no evidence in the record establishing that the endorsement in blank was made to Wells Fargo prior to the filing of the foreclosure complaint.”); Feltus v. U.S. Bank Nat’l Ass’n, 80 So.3d 375, 377 n. 2 (Fla. 2d DCA 2012) (holding that bank was required “to prove the endorsement in blank was effectuated before the lawsuit was filed”).
- If a foreclosing plaintiff fails to establish its standing on the date the lawsuit was filed, its case must be dismissed and a new lawsuit must be filed. Zimmerman v. JP Morgan Chase Bank, N.A., Slip Op. at 1-2 (Fla. 4th DCA February 12, 2014); McLean, 79 So. 3d at 175; Jeff-Ray Corp., 566 So.2d at 886. See also Progressive Exp. v. McGrath Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005).
- Here, the note attached to Plaintiff’s complaint is made payable to New Century and contains no endorsement, either in blank or specifically to Plaintiff, which would confer onto Plaintiff the status of “holder” of the note. Therefore, to the extent Plaintiff wishes to establish its standing to sue based on the alleged endorsement on the note, it must prove that the endorsement was effectuated prior to the lawsuit being filed. This, however, Plaintiff has failed to do.
- Additionally, the purported “assignment” of mortgage creates no pre-suit rights in Plaintiff which would confer onto it standing to sue. Specifically the assignment post-dates the filing of the complaint and therefore cannot be used to “retroactively” gain standing. See Vidal, 104 So. 3d at 1278 n. 1.