BANK OF NEW YORK MELLON F/K/A BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2007-OH1 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-OH1, Appellant,
JULIAN BURGIEL, EGRET'S LANDING AT LAKE MARY HOMEOWNERS ASSOCIATION, INC. AND BOCA STEL, LLC, Appellees. .
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Jessica J.
Jennifer Lima-Smith and Tara M. McDonald, of Gilbert Garcia
Group, P.A., Tampa, for Appellant.
P. Stopa, of Stopa Law Firm, Tampa, for Appellee, Boca Stel,
Appearance for Other Appellees.
residential foreclosure case, Bank of New York Mellon, f/k/a
Bank of New York, as Trustee for the Certificate Holders of
CWALT, Inc., Alternative Loan Trust 2007-OH1 Mortgage
Pass-Through Certificates, Series 2007-OH1 ("Bank")
appeals a final judgment of involuntary dismissal entered in
favor of appellee Boca Stel, LLC for lack of
standing. We reverse and remand.
review de novo a trial court's ruling on a motion for
involuntary dismissal. Wilmington Sav. Fund Soc'y,
FSB v. Louissaint, 212 So.3d 473, 475 (Fla. 5th DCA
2017). When reviewing the grant of an involuntary dismissal,
we "view the evidence and all inferences of fact in a
light most favorable to the nonmoving party, " and
affirm "only where no proper view of the evidence could
sustain a verdict in favor of the nonmoving party."
Deutsche Bank Nat'l Tr. Co. v. Clarke, 87 So.3d
58, 60 (Fla. 4th DCA 2012). We similarly review de novo
whether a party has standing to bring the foreclosure action.
Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116
(Fla. 2011); Figueroa v. Fed. Nat'l Mortg.
Ass'n, 180 So.3d 1110, 1115 (Fla. 5th DCA 2015).
mortgage foreclosure proceeding, a party seeking foreclosure
must demonstrate that it has standing to foreclose.
E.g., Gorel v. Bank of N.Y. Mellon, 165
So.3d 44, 45-46 (Fla. 5th DCA 2015); McLean v. JP Morgan
Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla.
4th DCA 2012). A foreclosure 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)). To prove standing in a
mortgage foreclosure case, the plaintiff must prove its
status as a holder of the note, a non-holder in possession of
the note who has the rights of a holder, or a person not in
possession of the note who is entitled to enforce under
section 673.3091 or section 673.4181 (4), Florida Statutes.
§ 673.3011, Fla. Stat. (2014). A holder is defined as,
inter alia, "[t]he person in possession of a
negotiable instrument that is payable either to bearer or to
an identified person that is the person in possession."
Id § 671.201 (21)(a).
case, Bank's complaint alleged that it acquired the loan
and possessed both legal and beneficial interest in the note
and mortgage prior to filing the complaint. This language
notwithstanding, attached to the complaint was a copy of the
note with a blank indorsement, making it payable to the
bearer. There is no dispute that the original note entered
into evidence at trial was identical to the copy attached to
the complaint. This was sufficient evidence to show that Bank
had standing both at the inception of the foreclosure
proceeding as well as at the time of final judgment; Boca
Stel presented no evidence to the contrary.
combination of the copy of the note attached to the complaint
and the later-filed original sufficed to establish Bank's
standing to foreclose. Louissaint, 212 So.3d at 476;
see Wells Fargo Bank, N.A. v. Ousley, 212 So.3d
1056, 1058 (Fla. 1st DCA 2016) ("A copy of a note with a
blank endorsement attached to the complaint, with the
original filed at trial, is enough to establish standing for
the party that filed the complaint."). Thus, the trial
court erroneously dismissed Bank's case for lack of
standing. Louissaint, 212 So.3d at 476; see Bank
of N.Y. Mellon v. Heath, 219 So.3d 104, 106 (Fla. 4th
DCA 2017) ("Here, Bank established standing because the
original note and blank-endorsed allonge was properly
authenticated and introduced into evidence at trial, which
was identical to the copy of the note and blank-endorsed
allonge attached to the complaint.").
reverse the final judgment of involuntary dismissal and
remand for further proceedings.