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Robinson v. Nationstar Mortgage LLC

Florida Court of Appeals, Second District

December 4, 2019

TONY ROBINSON and DEBRA ROBINSON, Appellants,
v.
NATIONSTAR MORTGAGE LLC and REGENCY WEST APARTMENTS II ASSOCIATION, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Pinellas County; Marion L. Fleming, Judge.

          Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellants.

          Nancy M. Wallace of Akerman LLP, Tallahassee; and William P. Heller of Akerman LLP, Fort Lauderdale, for Appellee Nationstar Mortgage LLC.

         No appearance for Appellee Regency West Apartments II Association.

          SLEET, JUDGE.

         Tony and Debra Robinson appeal the trial court's amended final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC, after a nonjury trial. Because Nationstar failed to establish its standing at the inception of the lawsuit and the trial court abused its discretion in granting Nationstar's motion to reopen the evidence to submit additional proof of standing, we reverse and remand for entry of involuntary dismissal.

         This case has a long and convoluted procedural history. The note and mortgage executed by the Robinsons in 2006 was negotiated among several mortgagees before it was ultimately transferred by special endorsement to Deutsche Bank Trust Company. On February 28, 2012, Aurora Loan Services, LLC, filed the underlying foreclosure action against the Robinsons, alleging that it was the servicer for Deutsche Bank and that it had standing to enforce the note as a nonholder in possession of the note. The Robinsons timely filed their answer and affirmative defenses, one of which was that Aurora lacked standing to bring the foreclosure action. Shortly thereafter, Nationstar was substituted as party plaintiff in place of Aurora.

         A nonjury trial was held, and in their written closing argument, the Robinsons argued that Nationstar had failed to establish that Aurora had standing at the inception of the case and that therefore the case should be dismissed. The trial court, however, disagreed and entered a final judgment of foreclosure in favor of Nationstar on June 25, 2015. The Robinsons moved for rehearing, arguing that Nationstar's evidence was insufficient to establish Aurora's standing at the inception of the lawsuit. Nationstar opposed the Robinsons' motion but conceded that it had not established its entitlement to attorney fees and requested that the court allow it to reopen the evidence as to that specific issue. The court denied the Robinsons' motion for rehearing on standing but granted Nationstar's request to reopen the evidence as to attorney fees and ordered Nationstar to schedule a hearing to address that issue.

         Nationstar never set a hearing on attorney fees, and no corrected final judgment was ever submitted to the court. Instead, a foreclosure sale took place on December 16, 2015. The Robinsons moved to vacate the sale, arguing that it was improper to hold a foreclosure sale where no final judgment of foreclosure had been rendered. The trial court granted the motion.

         However, before a final judgment could be rendered, Nationstar moved to reopen the evidence "to present additional proof of standing." Nationstar maintained that reopening the evidence would not prejudice the Robinsons because the trial court had previously agreed to open the evidence as to attorney fees and the judgment was not yet final. The trial court granted the motion over the Robinsons' objection, noting in its order that Nationstar had now waived its claim for attorney fees-the claim that had been the sole impediment to a final judgment being entered after the trial court granted Nationstar's request to reopen the evidence after entry of the initial final judgment. The trial court then conducted a second trial on June 20, 2018, following which it entered its amended final judgment of foreclosure in Nationstar's favor.

         On appeal, the Robinsons argue that Nationstar's evidence in the first nonjury trial was insufficient to establish Aurora's standing at inception and that the trial court abused its discretion by allowing Nationstar to correct that deficiency by reopening the evidence as to standing three years after the first trial. We agree in both respects.

         With regard to the Robinsons' first argument, "[a] substituted plaintiff acquires only the standing of the original plaintiff." Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015); see also Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 353 n.4 (Fla. 1st DCA 2014). Furthermore, a foreclosure "plaintiff must prove that it had standing to foreclose when the complaint was filed." McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So.3d 170, 173 (Fla. 4th DCA 2012). As such, Nationstar, as successor plaintiff, had the burden to prove that its predecessor Aurora had standing to foreclose at the time it filed the complaint.

         To that end, "Florida Rule of Civil Procedure 1.210(a), the real party in interest rule, 'permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.'" Russell, 163 So.3d at 642 (quoting Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007)). "Thus, 'a servicer may be considered a party in interest to commence legal action as long as the [real party in interest] joins or ratifies its action.'" Russell, 163 So.3d at ...


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