florida foreclosures

There aren’t many things much more fun than walking out of court with a well-earned foreclosure VICTORY AT TRIAL!

Read on to hear about what makes this one so special!

Defendants James M. Heyward and Zarold Homes, LLC (“the Defendants”), by and through undersigned counsel and pursuant to Fla. R. Civ. P. 1.420(b) and 1.140(h)(2), moves the Court to dismiss the case prosecuted by Deutsche Bank National Trust Company, as trustee of the IndyMac Bank Mortgage Loan Trust 2005-AR2 Mortgage Loan Pass Through Certificate Series 2005-AR2, under the pooling and servicing agreement dated January 1, 2005 (“the Bank”) because the Bank failed to prove the original party-plaintiff’s standing at inception or the Bank’s standing at trial, and because the complaint fails to state a cause of action.

Alternatively, and to the extent that the Court awards judgment in favor of the Bank, the Defendants request that the Court exclude any interest award, escrow award, and attorney fee award for lack of competent, substantial evidence.


  1. IndyMac Bank, F.S.B. (“IndyMac”) initiated this action when it filed its two-count complaint for mortgage foreclosure and re-establishment of a purportedly lost “mortgage note.”[1] The complaint was clear that IndyMac purported to be the holder of the note[2] and did not give any indication whatsoever that IndyMac was prosecuting the action on behalf of the Bank (or anyone else for that matter).  It is also undisputed that a copy of the note was not attached to the complaint.
  2. Over a year later, IndyMac filed the purported original note with the Court. It is undisputed that IndyMac’s notice of filing[3] did not indicate that the filing was intended to be an amendment to its complaint.  Likewise, neither IndyMac nor the Bank ever secured leave of Court to deem this filing an amendment to the complaint.

Later still, IndyMac moved to substitute the Bank as party plaintiff alleging that, after the lawsuit was filed, the note and mortgage were sold or transferred to the Bank:

  1. The case should be dismissed because the Bank failed to prove IndyMac’s standing at inception or the Bank’s standing at trial.

 A plaintiff must acquire standing before filing suit. Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128 (Fla. 4th DCA 2014) (reversing summary judgment of foreclosure because foreclosing lender failed to produce documentation establishing that it had standing at the time it filed the foreclosure complaint); LaFrance v. U.S. Bank Nat. Ass’n, 141 So. 3d 754, 755 (Fla. 4th DCA 2014) (“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose…Standing to foreclose is determined at the time the lawsuit is filed.”) (Citations omitted).

Furthermore, a substituted plaintiff only takes whatever standing the original party plaintiff had at the time the complaint was filed. Assil v. Aurora Loan Services, LLC, 171 So. 3d 226, 227 (Fla. 4th DCA 2015) (“[A] substituted plaintiff acquires the standing of the original plaintiff.”).  But in addition to proving the prior plaintiff’s standing, the substituted plaintiff must also prove its standing at the time of judgment. Creadon v. U.S. Bank, N.A., 166 So. 3d 952 (Fla. 2d DCA 2015).  And an order of substitution does not create standing in a substituted plaintiff. Geweye v. Ventures Trust 2013-I-H-R, 189 So. 3d 231 (Fla. 2d DCA 2016).

Finally, “[w]here as here, the defendant asserts a lack of standing as a defense to foreclosure, it is incumbent upon the plaintiff to prove its standing at trial.” Dickson v. Roseville Properties, LLC, __ So. 3d __, 2015 WL 6777155, * 2 (Fla. 2d DCA November 6, 2015).  Because the Defendants denied IndyMac’s allegation that it was the holder of the note and raised standing as an affirmativce defense, IndyMac’s standing at inception and the Bank’s standing at the time of trial became something the Bank had to prove in its case in chief.  Such proof was sorely lacking.




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