BONAFIDE PROPERTIES, LLC AS TRUSTEE ONLY, UNDER THE 8703 ATHENA CT. LAND TRUST, Appellant,
E-TRADE BANK, GENE R. BELDEN, MARIE G. HARRINGTON, SUNTRUST BANK AND BELLECHASSE MASTER HOMEOWNERS ASSOCIATION, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Marion County, Victor J. Musleh,
Heather A. DeGrave, of Walters Levine, P.A.,  Tampa, for
S. Mandel, Melisa Manganelli, and Matthew Leider, of Law
Offices of Mandel, Manganelli & Leider, P.A., Boca Raton,
for E-Trade Bank, Appellee.
Appearance for other Appellees.
an appeal from a final judgment of foreclosure, in which
Bonafide Properties, LLC ("Appellant"), asserts,
inter alia, that E-Trade Bank ("E-Trade")
lacked standing. E-Trade relied upon an assignment of the
mortgage that it made to itself as attorney-in-fact for BAC
Home Loans Servicing, LP ("BAC"), a prior holder of
the note and mortgage. We find that E-Trade failed to prove
that it had authority to assign the mortgage to itself;
therefore, the trial court erred by denying Appellant's
motion for involuntary dismissal. Accordingly, we reverse.
original note and mortgage were executed in 2006 by Gene
Belden and Marie Harrington ("borrowers") in favor
of Countrywide Home Loans, Inc. ("Countrywide").
The note contained an undated indorsement in blank from
Countrywide. In 2009, Mortgage Electronic Registration
System, Inc. ("MERS"), as nominee for Countrywide,
assigned the mortgage "together with the note and each
and every other obligation described in said mortgage and the
money due and to become due thereon" to BAC.
2010, BAC instituted a foreclosure action against the
borrowers and filed the original note and mortgage with the
court. BAC dismissed that action without prejudice in August
2012. In 2013, Bayview Loan Servicing, LLC
("Bayview"), the servicer of the loan since
December 2011, sent a notice of default and intent to
accelerate to the borrowers.
2014, E-Trade filed its verified foreclosure complaint
together with copies of the note, mortgage, and an assignment
of the mortgage purportedly from BAC to E-Trade. The
assignment was executed by E-Trade as attorney-in-fact for
BAC. Appellant contested the validity of the assignment in
its motion to dismiss and in its answer on the basis that
there was no power of attorney attached to or alleged in the
beginning of the trial, the parties indicated that the only
issues to be resolved were standing and the amount of
damages. E-Trade presented one witness, Juan Pesantes, a
litigation manager employed by Bayview. Over Appellant's
objections, E-Trade used Pesantes' testimony to introduce
into evidence the original note and mortgage, copies of the
mortgage assignments, notice of default, a power of attorney
between E-Trade and Bayview, the servicing agreement between
E-Trade and Bayview, and the loan payment history. Appellant
moved for an involuntary dismissal, asserting that the
assignment of the mortgage from BAC to E-Trade was invalid
because there was no evidence that E-Trade had authority to
assign the mortgage to itself. The trial court denied the
motion and entered a final judgment of foreclosure in favor
argues that the assignment of the mortgage was insufficient
to establish standing and was invalid because E-Trade did not
establish by competent substantial evidence that it had the
authority to transfer the mortgage to itself on behalf of
BAC. "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) (citations omitted).
"A plaintiff who is not the original lender may
establish standing to foreclose a mortgage loan by submitting
a note with a blank or special endorsement,
an assignment of the note, or an affidavit otherwise proving
the plaintiff's status as the holder of the note."
Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310
(Fla. 2d DCA 2013) (citing McLean, 79 So.3d at 173).
"Absent evidence of the plaintiff's standing, the
final judgment must be reversed." Lacombe
v. Deutsche Bank Nat'l Trust. Co., 149 So.3d 152,
156 (Fla. 1st DCA 2014) (emphasis added).
E-Trade did not introduce any evidence at trial establishing
that it was the attorney-in-fact for BAC. The evidence only
established the existence of a power of attorney relationship
between E-Trade and Bayview. Because Appellant raised the
issue in its initial motion to dismiss, its answer, and again
during trial, E-Trade was required to establish that it did,
in fact, have the authority to convey the mortgage from BAC
to itself. See Figueroa v. Federal Nat'l Mtg.
Ass'n., 180 So.3d 1110, 1115 (Fla. 5th DCA 2015).
standing depended upon proof that the assignment from BAC to
E-Trade was valid; thus, its lack of proof on that point was
fatal to E-Trade's right to foreclose. Id.
Accordingly, the trial court reversibly erred by failing to
grant Appellant's motion for involuntary dismissal. We
have carefully considered, but need not discuss, the
remaining issues raised by ...