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Standing and Substituted Party Plaintiff under Fla. R. Civ. Pro. 1.260(c)
A substituted Plaintiff acquires the standing of the transferor original Plaintiff. On January 10, 2018, the decision of *Spicer v. Ocwen Loan Servicing,LLC, No. 4D16-2335, 2018 WL 354555, (Fla. Dist. Ct. App. Jan. 10, 2018), was released in which the Fourth District Court of Appeal held and affirmed the lower court’s ruling that pursuant to Fla. R. Civ. Pro. 1.260, “a transferee substituted as Plaintiff acquires the standing of the transferor original Plaintiff.” In which, “the acquired standing, coupled with the presentation of the original note, indorsed in blank, is sufficient to allow the substituted Plaintiff to foreclose.“ While the Appellant’s acknowledged that the original lender had standing to initiate the foreclosure action, they argued that the substituted Plaintiff did not establish standing because the original note had been filed with the clerk of court long before it was purportedly transferred to the substituted Plaintiff. Id. The Fourth District Court of Appeal, disagreed.
In reaching this holding, the Fourth District Court of Appeal, relied on the Motion to Substitute Party Plaintiff, which did specifically reference the transferring of the note in the motion, unlike in Geweye v. Ventures Trust 2013-I-H-R, 189 So.3d 231, 233 (Fla. 2d DCA 2016), in which the original Plaintiff filed a foreclosure complaint and later filed the original note indorsed in blank, and later based upon an assignment that referenced only the mortgage, the original Plaintiff filed a motion to substitute party plaintiff, with only a reference to the transfer of the Mortgage.
Establishing the original Plaintiff had standing at the time the complaint is filed is required, there is no requirement to demonstrate the standing of a substituted Plaintiff thereafter. To further re-enforce this proposition, on February 23, 2018, the decision of Wilmington Tr., Nat'l Ass'n for MFRA Tr. 2015-2 v. Moon, No. 5D16-3934, 2018 WL 1020170, (Fla. Dist. Ct. App. Feb. 23, 2018), was released in which the Fifth District Court of Appeal held that a, “substituted Plaintiff may rely on standing of original Plaintiff at time the case was filed, and there is no requirement that the substituted Plaintiff must prove it’s standing at the time of substitution.” The relevant facts behind this decision were that the Appellees had executed a note and mortgage in favor of Wells Fargo Bank, and Wells Fargo filed a foreclosure action, with a copy of the note endorsed in blank, and a certification of possession declaring under penalty of perjury that Wells Fargo was in possession of the original note. Thereafter, Wilmington Trust filed a Motion to Substitute Party Plaintiff based on an assignment of mortgage it received from Wells Fargo. Said Motion was granted, in which Wilmington then filed an Amended Complaint and alleged that it was the holder of the note, and attached the certification of possession as executed by Wells Fargo.
Appellees argued that that Wilmington Trust lacked standing because it was not the holder of the note as of the date it filed the Amended Complaint for verification. The Fifth District Court Appeal in reaching its holding reasoned that as Wells Fargo’s standing at the inception of the case was not challenged, and that Appellees presented no evidence that Wilmington Trust would be unable it prove it was holder at the time of trial that it was error for the trial court to have granted Appellee’s motion for summary judgment.
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