final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Martin H. Colin, Judge; L.T. Case No.
Daniel McKillop, of McKillop Law Firm, Sarasota, for
Anthony R. Yanez and Nicole R. Topper, of Blank Rome LLP,
Fort Lauderdale, for appellee Ocwen Loan Servicing, LLC,
Riverwalk of the Palm Beaches Homeowners Association, Inc.
borrowers appeal the circuit court's final judgment of
foreclosure in favor of the lender. They acknowledge that the
original lender had standing to initiate the foreclosure
action. However, they argue a party later substituted as
plaintiff failed to establish that it had the right to
enforce the note. We disagree. And, in doing so, we reaffirm
our holdings that, pursuant to Florida Rule of Civil
Procedure 1.260, a transferee substituted as plaintiff
acquires the standing of the transferor original plaintiff.
The acquired standing, coupled with the presentation of the
original note, indorsed in blank, is sufficient to allow the
substituted plaintiff to foreclose.
West Bank filed a complaint seeking to foreclose on the
borrowers' residence. One West alleged that it had been
assigned the note and mortgage by the original lender, and
attached a copy of the original note, indorsed in blank, to
the original complaint. Later, One West filed a motion to
substitute party plaintiff and sought to substitute Ocwen as
the party plaintiff. The court held a hearing and, over the
borrowers' objection, granted the motion to substitute
the party plaintiff.
case proceeded to trial. At the conclusion of the
lender's case, the borrowers moved for an involuntary
dismissal. The borrowers conceded that One West had standing
when the lawsuit was filed. However, relying on Gewye v.
Ventures Trust 2013-I-H-R, 189 So.3d 231, 232 (Fla. 2d
DCA 2016), they argued that Ocwen, the substituted plaintiff,
did not establish standing because the original note had been
filed with the clerk of court long before it was purportedly
transferred to Ocwen.
court denied the borrowers' motion for involuntary
dismissal, distinguishing the case from Gewye, in
part, because One West's motion to substitute Ocwen as
the party plaintiff specifically referenced the Note. Since
the Note was bearer paper, the court found "Ocwen proved
it had possession of the endorsed in blank original note at
the time of trial, by virtue of it being in the court file of
the case of which it was the party plaintiff."
the court denied the motion for involuntary dismissal, the
trial continued, judgment was ultimately entered in favor of
the lender, and the borrowers appeal.
review the court's ruling that the substituted plaintiff
had standing de novo. Assil v. Aurora Loan
Servs., LLC, 171 So.3d 226, 227 (Fla. 4th DCA 2015).
case law is clear that standing must be established at the
time the complaint was filed, Kenney v. HSBC Bank USA,
Nat'l Ass'n, 175 So.3d 377, 379 (Fla. 4th DCA
2015), and "a bank must also establish its standing at
the time final judgment is entered, " Lamb v.
Nationstar Mortg., LLC, 174 So.3d 1039, 1040 (Fla 4th
DCA 2015). We have explained that "[s]tanding may be
established by either an assignment or an equitable transfer
of the mortgage prior to the filing of the complaint."
McLean v. JP Morgan Chase Bank Nat'l Ass'n,
79 So.3d 170, 173 (Fla. ...