VINCE ARCURI, a/k/a VINCENT ARCURI, individually and as trustee of The 18913 Chaville Road Residential Land Trust, Under Trust Dated April 15, 2008, Appellant,
HSBC BANK USA, NATIONAL ASSOCIATION, as trustee for SG Mortgage Securities Trust 2006-FREI, Asset Backed Certificates, Series FREI, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Mark D.
Fowler and Sami Thalji of Stamatakis Thalji Bonanno,
Tampa, for Appellant.
Karusha Y. Sharpe and M. Hope Keating of Greenberg Traurig,
P.A. Tallahassee, and Michele L. Stocker of Greenberg Taurig,
P.A., Fort Lauderdale, for Appellee.
Arcuri contends that the final judgment foreclosing his
mortgage must be set aside because the bank failed to prove
its standing to foreclose. We agree and reverse.
Bank USA, National Association, filed a complaint alleging
that Arcuri was in default because he had stopped making
payments on his mortgage and that the bank was entitled to
enforce the note as a holder in possession and to foreclose
on the mortgage. In his affirmative defenses, Arcuri asserted
that the bank did not have standing because the note had not
been properly endorsed and assigned to the bank.
trial, the note and mortgage were admitted into evidence. The
note reflected that the lender was Fremont Investment and
Loan. An allonge to the note purported to transfer it to HSBC
Bank from SGGH, LLC, successor in interest to Fremont
Reorganizing Corporation, f/k/a Fremont Investment and Loan.
The bank called Debra Kavalry as its only witness. She
testified that she worked for Wells Fargo Bank, N.A., which
serviced the loan in question for the bank. When the bank
sought to introduce the note, Arcuri conducted a voir dire
wherein Kavalry testified that she had no documentation
showing that Fremont Reorganization Corporation was formerly
known as Fremont Investment and Loan or that SGGH was the
successor in interest to Fremont Reorganization Corporation.
Arcuri objected to the introduction of the allonge, but he
the bank's case, Arcuri called Kavalry as a witness. She
testified that she had no personal knowledge that Fremont
Reorganization Corporation was formerly Fremont Investment
and Loan and she had nothing in writing to establish such.
She also testified that she had no personal knowledge that
SGGH was the successor in interest to Fremont Reorganization
Corporation. In closing argument, Arcuri contended that the
bank did not prove standing because it failed to establish
that its assignor, SGGH, was a successor in interest to the
original lender Fremont Investment and Loan. Arcuri relied on
Gee v. U.S. Bank National Ass'n, 72 So.3d 211
(Fla. 5th DCA 2011), in support of his argument.
court in American Home Mortgage Servicing, Inc. v.
Bednarek, 132 So.3d 1222, 1223 (Fla. 2d DCA 2014),
reiterated the black letter law regarding standing to
A party seeking foreclosure must establish that it had
standing to foreclose at the time it filed the complaint. A
foreclosure plaintiff has standing if it owns and holds the
note at the time suit is filed. A plaintiff may also
establish standing to foreclose by submitting evidence of a
special endorsement on the note in favor of the plaintiff or
a blank endorsement, an assignment from the payee to the
plaintiff, or an affidavit of ownership.
(Citations omitted.) Here, the bank alleged in the complaint
that it was the holder in possession of the note. But it
could only be a holder in possession with standing to
foreclose the mortgage if there was a valid assignment of the
note by SGGH as the successor in interest to Fremont
Investment and Loan.
The court in Gee considered a very similar
To prove its ownership, U.S. Bank filed a copy of the
Mortgage [denoting the mortgage and note] as well as two
assignments. The first assignment transferred the Mortgage
from Advent Mortgage, the original mortgagee, to Option One.
The second assignment purported to transfer the mortgage from
American Home, as successor in interest of Option One, to
U.S. Bank. However, and significant to our consideration,