Deborah E. Focht appealed the trial court’s entry of a final summary judgment of foreclosure in favor of Wells Fargo Bank, N.A. The Florida Second District Court of Appeal reversed the final judgment of foreclosure because there was a genuine issue of material fact regarding Wells Fargo’s standing to enforce the note and mortgage.
In October 2002, Ms. Focht executed an adjustable rate note and mortgage with BNC Mortgage, Inc. The loan was later transferred into a trust for which Wells Fargo is the trustee. Wells Fargo subsequently filed a motion for summary judgment, which Focht opposed based on numerous affirmative defenses including Wells Fargo’s lack of standing. Wells Fargo asserted that it had standing by virtue of an assignment of the note and mortgage dated September 2008, which was several months after the complaint was filed. Wells Fargo alternatively asserted that it had standing as the holder of the original note endorsed in blank. The trial court granted Wells Fargo’s motion for summary judgment and entered a final judgment of foreclosure. Focht appealed.
The appellate court reversed the final judgment based on the existence of a genuine issue of material fact regarding Wells Fargo’s standing to enforce the note and mortgage at the time it filed the complaint. In its opinion reversing the final judgment of foreclosure, the court stated that under Florida law, a plaintiff who is not the original lender may establish standing to foreclose a mortgage loan by submitting a note with a blank or special endorsement, an assignment of the note, or an affidavit otherwise proving the plaintiff’s status as the holder of the note. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). But standing must be established as of the time of filing the foreclosure complaint. Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acq. Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2010); McLean, 79 So. 3d at 173. Thus, the court ruled that Wells Fargo’s submission of a postfiling assignment of the note and mortgage did not establish that it had standing when it filed the lawsuit. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 253 (Fla. 2d DCA 2012); McLean, 79 So. 3d at 173.