State Appeals Courts Unrelenting In Screw-Up Reversals Of Florida Trial Judges' Rulings In Foreclosure Cases; Slams Brakes On Standing-Lacking Lender

Broward County, Florida Circuit Court Judge Miette K. Burnstein is among the latest scofflaws nabbed by a state appeals court for a incorrect ruling unfavorable to a homeowner in foreclosure. (One wonders if these trial judges simply figure that most homeowners simply do not have the personal resources to fund an appeal of these crappy rulings, and figure they can simply get away with their seemingly blatant conduct in granting judgments in favor of the foreclosing bankster in these cases).

The screw-up was on an issue so basic, it didn't require to extensive an explanation by the appeals court as to why Judge Bernstein was wrong (the shorter the ruling on reversal, the more fundamental the issue of law was).

The rule operative in this case was simply that "A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing." Apparently, this rule was beyond the scope of the trial judge's knowledge and understanding and, consequently, required reversal on appeal.

The appeals court reversal follows below, in its entirety:

• This appeal stems from a complaint of foreclosure filed an the appellee, Wells Fargo Bank, N.A., as trustee ("Bank"), against the appellants David Rigby and Kathlyn Rigby. The trial court entered final summary judgment. Because Bank failed to meet its burden on summary judgment, we reverse.

  The Bank filed its complaint on May 21, 2008, and attached a mortgage that named Option One Mortgage Corporation ("Option One") as the lender. Subsequently, the Bank filed an assignment of mortgage, from Option One to Bank, dated May 22, 2008, as well as the undated original note containing a special endorsement in favor of Bank. The parties proceeded to discovery and Bank sought an admission from the Rigbys acknowledging that they had previously received notice that the note and mortgage had been transferred to Bank. The Rigbys failed to respond to this request. Bank then filed a motion for summary judgment, attaching an affidavit wherein the affiant swore that Bank was holder and owner of the mortgage. Based on this record, the trial court entered summary judgment. A trial court's entry of summary judgment is reviewed de novo. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009).

  The Bank failed to establish that it had standing to foreclosure upon the note. "A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose." McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012).

  To establish standing, the plaintiff must submit the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note. Servedio v. U.S. Bank Nat'l Ass'n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010).

  "A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing." Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011).

  The Bank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of Bank was not dated. The assignment of mortgage, dated May 22, 2008, indicates that Bank did not acquire the mortgage until the day after the complaint was filed.

  Finally, neither the affidavit, nor the technical admissions made by the Rigbys, establishes the date on which Bank acquired possession of the note and there is no evidence in the record establishing that an equitable transfer of the mortgage occurred prior to the date the complaint was filed. See McLean, 79 So. 3d at 174 (reversing final summary judgment of foreclosure because appellee bank failed to establish standing where mortgage was assigned to bank three days after lawsuit was filed; note contained undated special endorsement in favor of bank; and affidavit in support of summary judgment failed to indicate that bank became equitable owner of note and mortgage prior to date lawsuit was filed).

  Reversed.
  WARNER and CONNER, JJ., concur.

For the ruling, see Rigby v. Wells Fargo Bank, 4D10-3587 (Fla. 4th DCA April 5, 2012).

college football recruiting rankings ground hog day 2012 aaron carter black history month did groundhog see his shadow soul train don cornelius rod parsley