WILMINGTON TRUST, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR MFRA TRUST 2015-2, Appellant,
ROLLAND A. MOON, INDIVIDUALLY AND AS TRUSTEE, AIRES TRUST, A TEXAS JOINT STOCK COMPANY, ROBERT MOON, INDIVIDUALLY AND AS TRUSTEE OF THE ROLLAND, JENNIFER AND NATHAN MOON TRUST FUND DATED 11-16-11, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Melanie Chase,
Ramirez, of eXL LEGAL, PLLC, St. Petersburg, for Appellant.
M. Gingo, Titusville, for Appellees.
Trust, National Association ("Wilmington Trust")
appeals the final summary judgment entered in favor of
Appellees. Wilmington Trust argues that summary judgment was
improper because a genuine issue of material fact existed
regarding whether Wilmington Trust had standing to foreclose
on the note and mortgage in question. We agree, and
and Jennifer Moon executed a note and mortgage in favor of
Wells Fargo Bank in 2008. On June 15, 2015, Wells Fargo filed
a foreclosure action against Appellees, alleging that the
Moons had defaulted on the note by failing to make the
payment due May 1, 2011, and all subsequent payments.
Attached to the verified complaint was a copy of the note
endorsed in blank, a copy of the mortgage, and a
"certification of possession" declaring under
penalty of perjury that as of April 13, 2015, Wells Fargo was
in possession of the original note.
Wilmington Trust filed a motion to substitute as plaintiff
based on an assignment of mortgage it received from Wells
Fargo. The motion was granted on February 22, 2016.
Thereafter, Wilmington Trust filed a verified amended
complaint alleging, inter alia, that Wilmington
Trust "is the holder of the note and is entitled to
enforce said mortgage and mortgage note." A copy of the
mortgage, assignment of mortgage, and note were attached to
the verified amended complaint. Wilmington Trust also
attached a certificate of possession that was identical to
the one attached by Wells Fargo to the original verified
did not file an answer to the amended verified complaint.
Instead, Appellees filed a motion for summary judgment, or
alternatively, motion to dismiss action, arguing that
Wilmington Trust lacked standing. Specifically, Appellees
contended that although the amended verified complaint
alleged that Wilmington Trust was the holder of the note, the
attached certificate of possession indicated that Wells Fargo
possessed the note. Appellees further argued that the amended
verified complaint did not allege either: (1)that there was
an agency relationship between Wilmington Trust and Wells
Fargo, or (2)that the note (as opposed to the mortgage) had
been assigned by Wells Fargo to Wilmington Trust. As a
result, according to Appellees, Wilmington Trust lacked
standing because it was not the holder of the note as of the
date it filed the amended verified complaint. Appellees did
not file any affidavits or other summary judgment evidence in
support of their motion.
the lack of summary judgment evidence, the trial court
granted summary judgment in Appellees' favor, finding
that the undisputed facts established that Wilmington Trust
lacked standing because the certificate of possession
demonstrated that Wilmington Trust did not possess the note.
order granting summary judgment is reviewed de novo.
Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760
So.2d 126, 130 (Fla. 2000). A court may grant summary
judgment only if there is no genuine issue of material fact
and if the moving party is entitled to judgment as a matter
of law. Id. The burden rests on the moving party to
demonstrate the nonexistence of any dispute as to the
material facts; only after the moving party has tendered
competent evidence supporting its motion does the burden
shift to the other party to come forward with counterevidence
that establishes a question of material fact. Hicks v.
Hoagland, 953 So.2d 695, 697 (Fla. 5th DCA 2007).
Because summary judgment is not a substitute for trial, when
a defendant moves for summary judgment, the court is not
called upon to determine whether the plaintiff can actually
prove its cause of action; rather, the court's function
is solely to determine whether the record conclusively shows
that the moving party has established that the plaintiff
could never prove its case. Land Dev. Servs., Inc. v.
Gulf View Townhomes, LLC, 75 So.3d 865, 869 (Fla. 2d DCA
2011) (holding defendant in mortgage foreclosure action was
not entitled to summary judgment because original note and
mortgage were not "in evidence"; "burden was
on [defendant] to prove that [plaintiff] could never
prove its case-not that it had not already done
mortgage foreclosure action, it is well settled that a
plaintiff must have standing both at the inception of the
foreclosure proceeding as well as at the time of final
judgment. Bowmar v. SunTrust Mortg., Inc., 188 So.3d
986, 988 (Fla. 5th DCA 2016) (citing Pennington v. Ocwen
Loan Servicing, LLC, 151 So.3d 52, 53 (Fla. 1st DCA
2014)). In the case of a substituted plaintiff, the
substituted plaintiff may rely on the standing (if any) of
the original plaintiff at the time the case was filed. The
substituted plaintiff then must prove its own standing when
judgment is entered. Sandefur v. RVS Capital, LLC,
183 So.3d 1258, 1260 (Fla. 4th DCA 2016). Significantly,
there is no requirement that a substituted plaintiff must
prove its standing at the time of the substitution. See
Ventures Tr. v. Asset Acquisitions & Holdings Tr.,
202 So.3d 939, 943 (Fla. 2d DCA 2016) ("[Defendant]
cites no legal authority that suggests yet a third temporal
point for required standing in foreclosure proceedings-a
prior, substituted plaintiff's at the time of a
court-ordered substitution-in order for a holder to enforce a
mortgage. And we are loathe to engraft something so
unheralded (and unwarranted) upon what is, now, a
well-settled facet of foreclosure law.").
instant case, Wells Fargo's standing at the inception of
the case was not challenged. Appellees presented no summary
judgment evidence that Wilmington Trust would be unable to
prove it was the holder of the note at trial. Accordingly, it
was error ...