BYRON E. MATHIS, Appellant,
NATIONSTAR MORTGAGE, LLC; UNKNOWN SPOUSE OF BYRON E. MATHIS; UNKNOWN TENANT IN POSSESSION 1 n/k/a CALVIN GRIFFIN; UNKNOWN TENANT IN POSSESSION 2 n/k/a SHEILA GRIFFIN; UNKNOWN TENANT IN POSSESSION 3 n/k/a TOOKIE SMITH, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Marion L.
Fleming, Senior Judge.
Michael E. Rodriguez of Foreclosure Defense Law Firm, P.L.,
Tampa, for Appellant.
M. Wallace of Akerman LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and Eric M. Levine of Akerman
LLP, West Palm Beach, for Appellee, Nationstar Mortgage, LLC.
appearance for remaining Appellees.
Mathis challenges a final judgment of foreclosure entered in
favor of Nationstar Mortgage, LLC (Nationstar), after a bench
trial. He contends that there was insufficient evidence to
prove Nationstar's standing to foreclose as a holder in
possession of the note, to which an allonge had been
attached, secured by the mortgage. Because Nationstar failed
to submit the original allonge to the note for filing in the
court file either before or at the time of trial, we reverse.
22, 2007, Mr. Mathis executed a note in favor of Homecomings
Financial, LLC (Homecomings Financial), as the lender. The
note was secured by a residential mortgage to Mortgage
Electronic Registration Systems, Inc. (MERS), as nominee for
the lender. Homecomings Financial later indorsed the note to
Residential Funding Company, LLC, which in turn indorsed the
note to Deutsche Bank Trust Company Americas as Trustee
(Deutsche Bank). Deutsche Bank subsequently indorsed the note
in blank on an allonge that was attached to the note. MERS
assigned the mortgage to Aurora Bank FSB. In turn, Aurora
Bank FSB assigned the mortgage to Nationstar on March 21,
31, 2014, Nationstar filed the underlying action to foreclose
the mortgage. Nationstar attached to its complaint a copy of
the note and the allonge, as well as a certificate evidencing
its possession of the original note. On October 8, 2014, Mr.
Mathis filed his answer and affirmative defenses to the
complaint. Mr. Mathis denied Nationstar's allegation that
it was in "physical possession of the [n]ote endorsed in
blank." A few weeks later, Nationstar filed the original
note in the court file, but failed to file the original
trial, Nationstar attempted to prove its standing to
foreclose the mortgage. Nationstar introduced several
exhibits into evidence, including the mortgage and the
original note. Nationstar also brought one of its senior
default case specialists to testify that she was familiar
with the records regarding Mr. Mathis's loan and that Mr.
Mathis had defaulted on his loan. The case specialist further
testified, over Mr. Mathis's best evidence rule
objection,  to the following: (1) she was familiar
with the original note, (2) the note contained an allonge,
(3) the allonge contained a blank indorsement, and (4)
Nationstar possessed the allonge. However, Nationstar never
produced the original allonge or offered it into evidence.
Nationstar rested its case, Mr. Mathis immediately moved for
an involuntary dismissal. Mr. Mathis argued that Nationstar
had not proved its standing to enforce the note because it
did not produce the original allonge. Mr. Mathis emphasized
that without the original allonge and its blank indorsement,
Nationstar did not have standing to foreclose because the
note itself was indorsed to Deutsche Bank. In response,
Nationstar argued that Mr. Mathis waived his right to raise
the issue of standing and that it was a nonholder in
possession of the note. Without making any findings, except
that Nationstar proved its case by a preponderance of the
evidence, the trial court entered a final judgment of
foreclosure in favor of Nationstar.
appeal, Mr. Mathis argues that the trial court erred in
ruling that Nationstar had proved its standing to foreclose
the mortgage. Specifically, Mr. Mathis contends that
Nationstar failed to prove its standing because it did not
file the original allonge to the note. In response,
Nationstar argues that because it was in possession of the
original note indorsed in blank at the time of the
commencement of the action in the circuit court,
"nothing more is required for standing." Nationstar
further argues that even without the original allonge, it
still qualifies as a holder in possession of the note.
review of whether a party has standing to foreclose is de
novo. Gonzalez v. BAC Home Loans Servicing, L.P.,
180 So.3d 1106, 1108 (Fla. 5th DCA 2015). To prove standing
as a holder in possession of the note, a plaintiff must show
that it was the holder of the note and mortgage at the time
the foreclosure complaint was filed and at the time of trial.
See ALS-RVC, LLC v. Garvin, 201 So.3d 687, 690-91
(Fla. 4th DCA 2016) (citing Kiefert v. Nationstar Mortg.,
LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014)). "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)
(footnote omitted) (citing McLean v. JP Morgan Chase Bank
Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA
2012)). Further, "[b]ecause an allonge is essentially
part of the note, " it may be necessary for a mortgagee
"to file the original allonge along with the original
note" to prove standing. Caballero v. U.S. Bank
Nat'l Ass'n ex rel. RASC 2006-EMX7, 189 So.3d
1044, 1046 (Fla. 2d DCA 2016) (citing Isaac v. Deutsche
Bank Nat'l Tr. Co., 74 So.3d 495, 496 n.1 (Fla. 4th
DCA 2011)); cf. Purificato v. Nationstar Mortg.,
LLC, 182 So.3d 821, 822 (Fla. 4th DCA 2016) (noting that
the mortgagee attached a copy of the original note and
allonge to its complaint and subsequently produced the
originals to prove standing at trial).
Caballero, this court confronted a similar issue.
There, the mortgagee, U.S. Bank, attached copies of the
original note, mortgage, and allonge to its foreclosure
complaint. 189 So.3d at 1045. The copy of the allonge bore a
special indorsement to U.S. Bank. Id. However, when
U.S. Bank later filed the original note, it failed to attach
the original allonge. Id. Indeed, instead of
attaching the original allonge, U.S. Bank attached an allonge
that listed a different loan number. Id.
Accordingly, we held that U.S. Bank's documents were
insufficient to establish its standing because U.S. Bank
failed to file the original allonge. Id. We reasoned
that "[b]ecause an allonge is essentially part of the
note, it was necessary for U.S. Bank to file the original