from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No.
Farrow of Farrow Law, P.A., Davie, for appellant.
M. Wallace of Akerman LLP, Tallahassee, and William P. Heller
and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for
MOTION FOR REHEARING
appellee's motion for rehearing, but withdraw our
previously issued opinion and substitute the following in its
appeals a final judgment of foreclosure following summary
judgment. Appellant argues that a genuine issue of material
fact existed as to standing at the inception of the action
because the endorsement on the note attached to the complaint
was different than the endorsements on the original note
filed with the court. We agree that a genuine issue of
material fact existed and therefore we reverse.
Home Loans Servicing filed a complaint for mortgage foreclosure
against appellant. A copy of the note attached to the
complaint contained an undated endorsement in blank by Q
Lending, the lender named in the note. A copy of the note
attached to the amended complaint contained an undated
specific endorsement by Q Lending to Taylor, Bean &
Whitaker Mortgage Corp. as well as an undated endorsement in
blank by Taylor, Bean & Whitaker.
filed an answer and affirmative defenses, raising lack of
standing and pointing out the discrepancy in the
Mortgage Services, LLC, was substituted as party plaintiff
and moved for summary judgment. In support of its motion,
Carrington submitted an affidavit from Bank of America's
assistant vice president stating that Bank of America had
physical possession of the note endorsed in blank by Taylor,
Bean & Whitaker as of May 19, 2010, the date the
foreclosure action was filed. A screenshot accompanying the
affidavit showed that Bank of America received the note on
September 26, 2009. A second screenshot purported to show
that the version of the note with two endorsements was
scanned into Bank of America's system on December 18,
trial court granted summary judgment and entered a final
judgment in favor of Carrington.
a party has standing to bring an action is reviewed de novo.
Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128, 1129
(Fla. 4th DCA 2014). An order granting summary judgment is
also reviewed de novo. Craven v. TRG-Boynton Beach,
Ltd., 925 So.2d 476, 479 (Fla. 4th DCA 2006).
party moving for summary judgment must show conclusively the
absence of any genuine issue of material fact, and the court
must draw every possible inference in favor of the party
against whom a summary judgment is sought." Id.
at 479-80. "The burden is initially on the movant. Only
where the movant tenders competent evidence in support of his
motion does the burden shift to the other party to come
forward with opposing evidence." Id. at 480.
"[S]ummary judgment should not be granted unless the
facts are so crystallized that nothing remains but questions
of law." Id. If the evidence is conflicting,
permits different reasonable inferences, or tends to prove
the issues, it should be submitted to the trier of fact.
Darwiche v. Bank of N.Y. Mellon, 185 So.3d 1261,
1262 (Fla. 4th DCA 2016). "If the ...