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The Florida Bar Journal
July/August, 2016 Volume 90, No. 7
The Inescapable Duty to Prove and Disprove Standing in a Residential Mortgage Foreclosure Action

by H. Michael Muñiz

Page 42



These days, perhaps, the most frequently alleged affirmative defense to a residential mortgage foreclosure action is the foreclosing plaintiff’s lack of standing. That should not be surprising because mortgage loans are frequently bought and sold in the secondary mortgage market,1 which requires the foreclosing plaintiff to demonstrate that it owned or held a legally sufficient interest in the mortgage loan at the time the foreclosure suit was filed. The instant article primarily explores the common law burden of proof associated with the plaintiff’s standing in a mortgage foreclosure action, as well as the defendant’s burden of proof along with the legal effect of the failure of such proof, including a potential game-changing analysis.

Before reaching the legal nuances of standing, it seems appropriate to initially recognize and repose the obvious; a plaintiff’s standing is not an issue in a residential mortgage foreclosure action filed by the original mortgage lender.2 Stated otherwise, if there has not been a transfer of the beneficial interest in the mortgage loan from the original lender to another entity since the time the lender originated the mortgage loan, and the mortgage foreclosure action is filed by the original lender, of course, the original lender has standing to foreclose the mortgage.3 Modern-day repetitive mortgage loan sales and debt securitizations have rendered the original lender mortgage foreclosure action the rare exception to the norm.4

The ‘Standing’ Doctrine
The norm typically involves a mortgage foreclosure action that is not filed by the original lender, wherein the plaintiff faces an alleged affirmative defense against the foreclosure action within the mortgagor defendant’s responsive pleading that the plaintiff lacks standing to file and prosecute the mortgage foreclosure action.5 As such, it is prudent to first understand the legal concept or the “standing” requirement, when the defendant challenges the plaintiff’s standing because an understanding of standing is a necessary predicate to defend against a plaintiff’s alleged lack of standing. Generally, the plaintiff has standing if the plaintiff has a sufficient interest at stake in the controversy that will be affected by the outcome of the litigation.6

“In its broadest sense, standing is no more than having, or representing one who has, a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727, 731(1972)).

In the mortgage foreclosure context, “standing is broader than just actual ownership of the beneficial interest in the note.” Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007). “The Florida real party in interest rule, Fla. R. Civ. P. 1.210(a),7 permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.” Id. (quoting Kumar, 462 So. 2d at 1183). “Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.” Kumar, 462 So. 2d at 1183. See also BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”).8

Thus, the real party in interest with standing to foreclose may be either the owner or holder of the promissory note and mortgage, whereas some other entity, such as the mortgage loan servicer, may bring the mortgage foreclosure action on their behalf.9 Given its significance in the mortgage foreclosure context, the Third District provided a most instructive decision concerning the real party in interest rule wherein the court held that a plaintiff may be either the real party interest or may maintain the action on behalf of the real party in interest in which latter case the action cannot be terminated on the ground that plaintiff lacks standing.10

Foreclosing Plaintiff Must Prove Its Standing to Foreclose
The first lesson in “Foreclosures 101” is that a lender must prove it had standing before the complaint is filed to foreclose on a mortgage.11 Indeed, it has been repeatedly held that,

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean, 79 So. 3d at 173.12 “Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo.” Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14, 16 (Fla. 4th DCA 2012) (citation omitted). Standing to foreclose is determined at the time the lawsuit is filed and can be demonstrated by the filing of an assignment or the original note with a special endorsement in favor of the plaintiff or a blank endorsement. McLean, 79 So. 3d at 173. A “plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed” and cannot be established “retroactively by acquiring standing to file a lawsuit after the fact.” Id. (citation omitted).13

Accordingly, if the plaintiff files its verified complaint for residential mortgage foreclosure14 and attaches as an exhibit an assignment of the debt or a copy of the original note with a special endorsement in favor of the plaintiff or with a blank endorsement,15 plaintiff would have established its standing to foreclose, if plaintiff also possessed the note.16

The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.17 Verizzo v. Bank of N.Y., 28 So. 3d 976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortgage Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage,18 the issue of ownership becomes an issue the plaintiff must prove.19 Carapezza v. Pate, 143 So. 2d 346, 347 (Fla. 3d DCA 1962).

In the present case, appellant possessed the original note, mortgage, and assignment executed by the personal representative of Haner’s estate. The note was payable to the late John Haner, and the assignment granted Haner’s rights under the note and mortgage to appellant. Thus, appellant “held” the note, which granted him standing to seek foreclosure of the mortgage.20

The proof presented in Lizio v. McCollum, 36 So. 3d 927 (Fla. 4th DCA 2010) was more than legally sufficient to demonstrate plaintiff’s standing.21

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.”22 McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). To establish standing, the plaintiff must show it held or owned the note at the time the complaint was filed. Id. “A plaintiff may prove that it has standing to foreclose through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer.” Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013) (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 939 (Fla. 2d DCA 2010)).23

According to the First District’s decision in Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014), in addition to evidence of a valid assignment, plaintiff may also prove standing by proof of purchase of the debt or evidence of an effective transfer.24 The proof necessary to prove the plaintiff had standing at the time of filing the mortgage foreclosure action should be attached to the plaintiff’s initial pleading to avoid, if possible, defendant’s affirmative defense of plaintiff’s lack of standing. Such proof should ordinarily deter a foreclosure defense attorney from raising standing as an issue in the mortgage foreclosure action because affirmative defenses must be alleged in good faith.25

A plaintiff may also establish standing by any means identified in F.S. §673.3011, (2015).26 The statute concerns a person entitled to enforce an instrument and expressly provides:

The term “person entitled to enforce” an instrument means:

(1) The holder of the instrument;

(2) A nonholder in possession of the instrument who has the rights of a holder; or

(3) A person not in possession of the instrument who is entitled to enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4).

A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.27

“Because a promissory note is a negotiable instrument, and because a mortgage provides the security for the repayment of the note, this statute leads to the conclusion that the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession28 of the note who has the rights of a holder.”29 Furthermore, by implication, the foregoing statute would seem to suggest that a plaintiff may establish its standing through the sworn testimony of a trial witness, who testified that plaintiff held the promissory note on the date the mortgage foreclosure action was initially filed.30

Additionally, a transfer of the note after the mortgage foreclosure action has been filed will not necessarily jeopardize the proper plaintiff’s standing.

Second, as to standing, appellee acquired the note and mortgage from the prior holder, Amtrust Bank, which was the original plaintiff in this foreclosure action. Amtrust moved to substitute appellee as the plaintiff pursuant to Florida Rule of Civil Procedure 1.260. Under this rule, the substituted transferee (appellee) acquires the standing of the transferor original plaintiff (Amtrust). Amtrust had standing when the complaint was filed, in that the note attached to the complaint contained an allonge, dated before the filing of the lawsuit, assigning the note to Ohio Savings Bank. In support of the motion for summary judgment, appellee filed a certificate showing that Ohio Savings Bank had changed its name to Amtrust. Therefore, the note, together with the other filings, showed that Amtrust had standing to foreclose when it filed the complaint. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 172 (Fla. 4th DCA 2012).31

Thus, the substituted transferee in Brandenberg v. Residential Credit Solutions, Inc., 137 So. 3d 604 (Fla. 4th DCA 2014), acquired the standing of the transferor original plaintiff.32 Because proof of standing may be shown by demonstrating that plaintiff holds the original note, it is also significant to recognize that an original promissory note must be presented to the trial court prior to entry of a final judgment of foreclosure unless alleged and proven lost.33

“This court has recognized that possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms.” Clarke,34 87 So. 3d at 61 (citing Riggs v. Aurora Loan Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010)). Because a promissory note is a negotiable instrument, a plaintiff seeking to foreclose on a defendant must produce the original note (or provide satisfactory explanation of the failure to produce) and surrender it to the court or court clerk before the issuance of a final judgment in order to take it out of the stream of commerce. See, e.g., Downing v. First Nat’l Bank of Lake City, 81 So. 2d 486, 488 (Fla. 1955); Clarke, 87 So. 3d at 60-61; Johnston v. Hudlett, 32 So. 3d 700, 704 (Fla. 4th DCA 2010).35

Accordingly, possession of the original promissory note with either a blank indorsement or special indorsement to the named plaintiff should be sufficient to establish plaintiff’s standing to enforce the note.36 In a fairly recent decision from the First District, the court succinctly stated Florida law with respect to a foreclosing plaintiff’s standing, not the original lender. It is well-settled that:

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. Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) (footnote omitted).37

If, indeed, the foreclosing plaintiff has an affirmative duty to prove its standing to foreclose, then the defendant’s burden to prove to the contrary must only be conditionally grounded on the alleged lack of standing affirmative defense.38 It should further be noted that the Florida Legislature has established substantially similar requirements for statutory mortgage foreclosures that places the evidentiary burden squarely on the foreclosing plaintiff.39

Because Florida’s common law authorities have established that plaintiff’s lack of standing is an affirmative defense, it stands to reason that a defendant faced with a civil action for mortgage foreclosure would have the burden to allege and prove the plaintiff’s lack of standing.40 In fact, the Florida Supreme Court has held the defendant, not the plaintiff, bears the burden of proof to prove alleged affirmative defenses.41 Furthermore, at trial, the plaintiff does not bear any duty to disprove alleged affirmative defenses,42 which is not the case if the plaintiff moves for summary judgment.43 The tension in the law is palpable.

Plaintiff’s Failure to Prove Standing Is Fatal to Claim of Foreclosure
A plaintiff’s failure to show standing at commencement of the mortgage foreclosure action may prove fatal to an otherwise successful mortgage foreclosure action.44

Wells Fargo filed its foreclosure complaint in February of 2008. Attached to this complaint was a mortgage showing DCS Mortgage, Inc., as the lender. DCS Mortgage then assigned the mortgage to Option One. Nowhere in the record is there an indication that Option One assigned the mortgage to Wells Fargo….

“The party seeking foreclosure must present evidence that it owns [or] holds the note and mortgage in question in order to proceed with a foreclosure action.” Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (quoting Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010)). To satisfy this burden, Wells Fargo was required to submit either “the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note.”45 Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (citing Servedio, 46 So. 3d at 1107).

Here, Wells Fargo has provided no documentation which establishes that it had standing at the time it filed the foreclosure complaint. See Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011) (“A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.”).46

Indeed, a number of appellate decisions strongly suggest that documentation to establish standing is necessary.47 In Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903 (Fla. 1st DCA 2013), the First District also focused on the documentation concerning standing. The Fourth District’s Hall v. REO Asset Acquisitions, LLC, 84 So. 3d 388 (Fla. 4th DCA 2012), decision also appears grounded on the insufficiency of the documentation to prove plaintiff’s standing on the date the action was filed.48 The notion of proving a plaintiff’s standing appears, by its nature, to be grounded in some document, whether standing be proved by the promissory note indorsed in blank, or by an assignment of the note, upon which the mortgage equitably follows.49

Here, the bank filed the original note more than two years after the complaint was filed. The note contained an undated, blank indorsement, which was insufficient to prove standing at the time the complaint was filed. See Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013). Therefore, an issue of material fact remained as to when the note was transferred to the bank.

The bank relies on the “Assignment of Mortgage” from MERS to support standing, but the “assignment of mortgage reflects transfer of only the mortgage, not the note.” Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277 [(Fla. 4th DCA 2013)]. The bank argues that the note followed the mortgage when the mortgage was assigned to the bank. This argument is flawed. The mortgage follows assignment of the note. Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1118 (Fla. 2d DCA 2011). But “[a]n assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Vance v. Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965).50

In another informative decision, the Vidal court quoted a relevant portion of its prior decision in McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012).

The McLean court’s reasoning is pertinent to this case and bears repeating:

Even where an assignment of mortgage does not occur until after the complaint is filed, there are several ways a plaintiff may establish its standing to foreclose at the inception of the suit. Where the plaintiff contends that its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit. If the note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish standing. [citation omitted] Similarly, if the plaintiff relies upon an affidavit of ownership to prove its status as a holder of the note on the date the lawsuit was filed, it is sufficient if the body of the affidavit indicates that the plaintiff was the owner of the note and mortgage before suit was filed. Alternatively, if the affidavit itself is executed before the lawsuit is filed, the allegation that the plaintiff is the “owner and holder of the note” is sufficient to establish the plaintiff’s standing at the inception of the lawsuit….

While the original note contained an undated special endorsement in Chase’s favor, the affidavit filed in support of summary judgment did not state when the endorsement was made to Chase. Furthermore, the affidavit, which was dated after the lawsuit was filed, did not specifically state when Chase became the owner of the note, nor did the affidavit indicate that Chase was the owner of the note before suit was filed. Therefore, Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed.51

Therefore, the Vidal decision relying on McLean clearly provided that when the plaintiff contends its standing to foreclose derives from an endorsement of the note, the plaintiff must show that the endorsement occurred prior to the inception of the lawsuit.52

The [b]ank failed to establish that it had standing to foreclosure upon the note….To establish standing, the plaintiff must submit the note bearing a special endorsement in favor of the plaintiff, an assignment from payee to the plaintiff or an affidavit of ownership proving its status as holder of the note. Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010). “A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011). The [b]ank has not shown that it was holder of the note at the time the complaint was filed. The note containing a special endorsement in favor of [b]ank was not dated. The assignment of mortgage, dated May 22, 2008, indicates that [b]ank did not acquire the mortgage until the day after the complaint was filed. Finally, neither the affidavit, nor the technical admissions made by the Rigbys, establishes the date on which [b]ank acquired possession of the note and there is no evidence in the record establishing that an equitable transfer of the mortgage occurred prior to the date the complaint was filed.53

The Rigby court also focused on the insufficiency of the plaintiff’s documentation to prove its standing at inception. It should also be noted that:

The assignee of a mortgage and note assigned as collateral security is the real party in interest. Laing v. Gainey Builders, Inc., 184 So. 2d 897 (Fla. 1st DCA 1966). Once the mortgagee pledges a mortgage as collateral, it is divested of the power to foreclose. Smith v. F.D.I.C., 61 F.3d 1552 (11th Cir. 1995) (determining Florida law citing Laing). In such instances, a mortgagee has no standing to bring a foreclosure suit. See Crichlow v. Maryland Casualty Co, 156 So. 440 (Fla. 1933) (mortgagee is estopped to deny validity of assignment of mortgage and note; assignee is real party in interest).54

Thus, a mortgagee who pledges the mortgage as collateral may not lawfully file a foreclosure action if the mortgagor defaults. Additionally, amendment to plaintiff’s verified pleading generally should be permitted, within reason, to establish the plaintiff’s standing.55 However, amending plaintiff’s pleading to establish standing may be faced with the attendant consequences that plaintiff did not establish its standing when the action was first filed.56 Yet, notwithstanding all the Florida appellate decisions that prescribe that a foreclosing plaintiff must prove its standing to foreclose, standing combined with the other foreclosure elements, has not been established as a required element of proof to prove a prima facie case of mortgage foreclosure.57

A Potential Game-Changing, Modern View of the Foreclosure Plaintiff’s Standing
During late September 2013, the Second District in Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013), certified a question to the Florida Supreme Court as being a question of great public importance. To wit: Can a plaintiff in a foreclosure action cure the inability to prove standing at the inception of suit by proof that the plaintiff has since acquired standing?58 The answer to the question was a potential game-changer because, if the Supreme Court had been enabled to reach and then answer the certified question in the affirmative, Florida law concerning a plaintiff’s standing would have dramatically changed. The Focht court held, in relevant part, nothing in the record established that Wells Fargo was in possession of the note at the time the complaint was filed;59 a present necessary condition to prove standing. In that Focht decision, Judge Altenbernd authored yet another notable concurring opinion.60

I concur in this decision because existing precedent requires me to do so. A requirement that the plaintiff prove that it owned or possessed a promissory note at the commencement of a foreclosure action may have made sense during earlier periods of economic downturn, but in this era of securitization of mortgage debt and computerized banking, it has proven to be a restriction that often provides a windfall to a borrower who can prove no harm by the fact that the plaintiff obtains possession of the note after the filing of the lawsuit but before the entry of judgment. So long as there is no dispute that the borrower received the money and defaulted on the note, the law should not use “standing” to require the dismissal of a lawsuit. If the defendant raises this issue at the inception of the lawsuit this affirmative defense may warrant a delay in the proceedings while the plaintiff establishes that it can enforce the note. But especially when the original note in default has already been filed in the court record, the law should generally permit a plaintiff to obtain a judgment of foreclosure if the plaintiff establishes that it has a right to enforce the note at the time it seeks to obtain a final judgment. See generally Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010). The courts have erroneously transformed what should be a defendant’s affirmative defense, permitting the defendant to avoid a judgment of foreclosure by a plaintiff who is a stranger to the note, into a jurisdictional prerequisite that must be established by the plaintiff to avoid a dismissal of the action.61

After examining the particular facts of the Focht case, Judge Altenbernd made at least two other notable observations: 1) None of the borrowers’ concerns are solved by creating a jurisdictional prerequisite of “standing”; and 2) borrowers may often have legitimate affirmative defenses, but the delayed production of the original note and mortgage in a case in which the note and mortgage are in default should not justify a dismissal of the legal proceeding.62

Unfortunately, the Focht majority decision did not reach the Florida Supreme Court upon the certified question but, even if it had, the Supreme Court would likely have discharged jurisdiction.63 The Focht decision did not meet the three-prong test to enable exercise of the Florida Supreme Court’s discretionary jurisdiction because, while the Focht decision was a written opinion certified by the majority, the Focht court did not pass upon, i.e., decide, the certified question of great public importance.64

Conclusion
Despite the defendant’s burden to allege and prove plaintiff’s lack of standing, the super majority of Florida DCA decisions have established that the foreclosing plaintiff must prove its standing to file and prosecute a residential mortgage foreclosure action by either: 1) evidence of a blank endorsement or special endorsement on the note in favor of the plaintiff; 2) an assignment from the payee to the plaintiff; 3) an affidavit of ownership; 4) proof of purchase of the debt; 5) evidence of an effective transfer; or 6) any means identified in F.S. §673.3011. However, sworn testimony, alone, may be insufficient. Despite the numerous Florida appellate decisions, standing remains an outlier as an element of proof to establish a prima facie case of foreclosure that may be a gap in Florida foreclosure law.

More importantly, many of the Florida common law decisions concerning standing may be in irreconcilable conflict with the controlling jurisprudence of the Florida Supreme Court,65 which long ago established that the defendant bears the burden to prove alleged affirmative defenses and that lack of standing is an affirmative defense. However, the Supreme Court has not established that the foreclosing plaintiff must prove standing, nor does it appear to have been squarely confronted with the issue.66 In essence, if alleged, it is the defendant’s affirmative duty under prevailing Florida law to prove a negative concerning the plaintiff’s standing. Yet, at the same time, the great majority of mortgage foreclosure plaintiffs have also been charged with having to prove a positive concerning the plaintiff’s standing. Theoretically speaking, dual burdens of proof should not co-exist because one, alone, seems legally sufficient. In the residential mortgage foreclosure context, the plaintiff’s standing certainly seems to have obtained a unique place in the annals of Florida’s common law jurisprudence.


1 Aurora Bank, FSB v. Network Mortgage Servs., Inc., 2014 LEXIS 35285, No. 13-cv-00047 at *1-2 (D. Colo. Mar. 17, 2014) (“Defendant is a ‘correspondent lender’ who originates home mortgage loans and sells them to various buyers on the secondary mortgage market.”); Bucci v. Lehman Bros. Bank, FSB, 68 A.3d 1069, 1072-73 (R.I. 2013) (“The primary mortgage market consists mainly of home loans that are made to consumers. However, the loans are often ‘bundled’ and sold to institutional investors on the secondary mortgage market. In turn, the institutional investors often repackage and resell the loans or securitize them and sell shares of the resulting securities.”).

2 Lewis v. JPMorgan Chase Bank, As Trustee, 138 So. 3d 1212, 1213 (Fla. 4th DCA 2014) (“Here, though, the party which filed suit — the original lender — had standing to file suit at its inception because it owned the note and mortgage at the time it filed suit.”). See note 32.

3 See id.

4 Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 312-13 (Fla. 2d DCA 2013) (Altenbernd, J., concurring). See note 1.

5 Tidewater Estates Co-op, Inc. v. U.S. Bank Nat’l Ass’n, 83 So. 3d 912, 912 (Fla. 4th DCA 2012) (per curiam) (“Lack of standing is an affirmative defense to foreclosure.”); Pennington v. Ocwen Loan Servicing, LLC, 2014 LEXIS 14557, No. 1D13-3072 at *1 (Fla. 1st DCA Sep. 16, 2014) (“Because Ocwen failed to establish its standing to foreclose, or to refute Pennington’s affirmative defense contesting standing, we reverse and remand for further proceedings.”); Benz v. Fed. Home Loan Mortgage Corp., 2014 LEXIS 13011, No. 2D13-974 at *3-4 (Fla. 2d DCA Aug. 22, 2014) (“The borrowers’ answer denied the allegations of the amended complaint that pertained to standing, they raised lack of standing in a motion for summary judgment, and they argued lack of standing in a memorandum filed in opposition to Freddie Mac’s motion for summary judgment.”); LaFrance v. U.S. Bank Nat’l Ass’n, 141 So. 3d 754, 755 (Fla. 4th DCA 2014) (per curiam) (“Because appellee failed to rebut appellants’ affirmative defense of lack of standing, we reverse.”). See note 12.

6 Khazaal v. Browning, 707 So. 2d 399, 400 (Fla. 5th DCA 1998); Fed. Nat’l Mortgage Ass’n v. Legacy Parc Condo. Ass’n, Inc., 2015 LEXIS 15320, No. 5D14-3570 at *3 (Fla. 5th DCA Oct. 16, 2015) (citing Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006)).

7 “Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.” Id.

8 Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14, 16-17 (Fla. 4th DCA 2012). It should be noted that Elston/Leetsdale was not a residential mortgage foreclosure action. Id. at 15-16. Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618, 623 (Fla. 5th DCA 2010).

9 Rodriguez v. Wells Fargo Bank, N.A., 2015 LEXIS 15239, No. 4D14-100 at *2-3 (Fla. 4th DCA Oct. 14, 2015) (“A servicer that is not the holder of the note may have standing to commence a foreclosure action on behalf of the real party in interest, but it must present evidence, such as an affidavit or a pooling and servicing agreement, demonstrating that the real party in interest granted the servicer authority to enforce the note.”).

10 Juega v. Davidson, 8 So. 3d 488, 490 (Fla. 3d DCA 2009); Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151 (Fla. 2d DCA 2007) (“Furthermore, standing is broader than just actual ownership of the beneficial interest in the note. The Florida real party in interest rule, Fla. R. Civ. P. 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest.”).

11 Peoples v. SAMI II Trust 2006-AR6, 2015 LEXIS 15240, No. 4D14-2757 at *1 (Fla. 4th DCA Oct. 14, 2015) (“The first lesson in ‘Foreclosures 101’: a lender must prove it had standing before the complaint is filed to foreclose on a mortgage.”).

12 Not when the foreclosure action is filed by the original lender. Contra McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012); Rodriguez v. Wells Fargo Bank, N.A., 2015 LEXIS 15239, No. 4D14-100 at *2 (Fla. 4th DCA Oct. 14, 2015) (quoting McLean); Peoples v. SAMI II Trust 2006-AR6, 2015 LEXIS 15240, No. 4D14-2757 at *3 (Fla. 4th DCA Oct. 14, 2015) (quoting McLean); Kenney v. HSBC Bank USA, N.A., 2015 LEXIS 14073, No. 4D13-4165 at *4 (Fla. 4th DCA Sept. 24, 2015) (quoting McLean); Fiorito v. JP Morgan Chase Bank, N.A., 2015 LEXIS 12766, No. 4D13-2813 at *3 (Fla. 4th DCA Aug. 26, 2015) (quoting McLean); Schmidt v. Deutsche Bank, 170 So. 3d 938, 940 (Fla. 5th DCA 2015) (quoting McLean) (citing Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010); Verizzo v. Bank of N.Y., 28 So. 3d 976, 978 (Fla. 2d DCA 2010); Philogene v. ABN Amro Mortg. Grp., Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006)); Peuguero v. Bank of Am., N.A., 169 So. 3d 1198, 1202 (Fla. 4th DCA 2015) (quoting McLean); Gorel v. Bank of New York Mellon, 165 So. 3d 44, 45 (Fla. 5th DCA 2015) (quoting McLean); Matthews v. Fed. Nat’l Mortgage Ass’n, 160 So. 3d 131, 132 (Fla. 4th DCA 2015) (quoting McLean); Lloyd v. Bank of New York Mellon, 160 So. 3d 513, 514 (Fla. 4th DCA 2015) (quoting McLean); Murray v. HSBC Bank USA, N.A., 157 So. 3d 355, 357 (Fla. 4th DCA 2015) (quoting McLean); LaFrance v. U.S. Bank Nat’l Ass’n, 141 So. 3d 754, 755 (Fla. 4th DCA 2014) (per curiam) (quoting McLean); Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014) (quoting McLean); Bristol v. Wells Fargo Bank, N.A., 137 So. 3d 1130, 1132 (Fla. 4th DCA 2014) (quoting McLean); Zimmerman v. JP Morgan Chase Bank, N.A., 134 So. 3d 501, 501 (Fla. 4th DCA 2014) (per curiam) (citing McLean); Bennett v. Deutsche Bank Nat’l Trust Co., 124 So. 3d 320 (Fla. 4th DCA 2013) (per curiam) (citing Rigby v. Wells Fargo Bank, 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (quoting McLean, 79 So. 3d at 173)); Dixon v. Express Equity Lending Group, LLLP, 125 So. 3d 965, 967 (Fla. 4th DCA 2013) (quoting McLean). Contra note 2, 32.

13 LaFrance v. U.S. Bank Nat’l Ass’n, 141 So. 3d at 755-56; Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014) (same); Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1284-85 (Fla. 2d DCA 2005) (same) (following Voges v. Ward, 123 So. 785 (Fla. 1929); Marianna & B.R. Co. v. Maund, 56 So. 670 (Fla. 1911)).

14 Fla. R. Civ. P. 1.115(e) (“When filing an action for foreclosure on a mortgage for residential real property the claim for relief shall be verified by the claimant seeking to foreclose the mortgage.”).

15 Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”).

16 Id.; Clay County Land Trust v. JPMorgan Chase Bank, N.A., 152 So. 3d 83, 85 (Fla. 1st DCA 2014) (“When appellee filed the foreclosure complaint, it attached a copy of the note and an undated allonge to the note containing an endorsement in blank. This was sufficient to establish as a matter of law that appellee had standing to bring the foreclosure action.”) (citing Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 322 (Fla. 5th DCA 2013); U.S. Bank Nat’l Ass’n v. Knight, 90 So. 3d 824 (Fla. 4th DCA 2012); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So. 3d 81, 85 (Fla. 5th DCA 2012)); Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1117 (Fla. 2d DCA 2011) (per curiam) (“Bayview alleged in its complaint that it owns and holds said note by virtue of the endorsement/allonge. Bayview attached copies of the note and allonge to its complaint. The note and the allonge reflect that on the same day that Joyce Taylor executed the note in favor of USMoney, USMoney in turn endorsed the note without recourse to Bayview…. Thus Bayview established its status as holder of the note and its right to enforce the note.”); Harvey v. Deutsche Bank Nat’l Trust Co., 69 So. 3d 300, 304 (Fla. 4th DCA 2011) (“Here, because the note at issue is payable to AHMAI, and indorsed in blank, and because Deutsche possessed the original note and filed it with the circuit court, its standing may be established from its status as the note holder, regardless of any recorded assignments.”); see May v. PHH Mortgage Corp., 2014 LEXIS 13637, No. 2D13-1786 at *4 (Fla. 2d DCA Sep. 14, 2014) (“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.”); Am. Home Mortgage Servicing, Inc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014) (“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.”); U.S. Bank Nat’l Ass’n v. Knight, 90 So. 3d 824, 826 (Fla. 4th DCA 2012) (“Thus, to have standing, an owner or holder of a note, indorsed in blank, need only show that he possessed the note at the institution of a foreclosure suit; the mortgage necessarily and equitably follows the note.”); Saver v. JPMorgan Chase Bank, Nat’l Ass’n, 114 So. 3d 352, 353 (Fla. 4th DCA 2013) (“The following evidence is sufficient to establish standing in such a scenario: 1) a special endorsement on the note in favor of the plaintiff or a blank endorsement, 2) evidence of an assignment from the payee to the plaintiff, or 3) an affidavit of ownership.”). The Saver decision was an appeal of the entry of summary judgment. Id.

17 The language should have been “owns or holds the note.”

18 A number of Florida appellate decisions have used the phrase “a plaintiff must present evidence that it owns and holds the note and mortgage” when, in fact, a plaintiff must present evidence that it either owns or holds the note and mortgage. See BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010) (“The proper party with standing to foreclose a note and/or mortgage is the holder of the note and mortgage or the holder’s representative.”); Country Place Cmty. Ass’n v. J.P. Morgan Mortgage Acquisition Corp., 51 So. 3d 1176, 1179 (Fla. 2d DCA 2011) (“Because J.P. Morgan did not own or possess the note and mortgage when it filed its lawsuit, it lacked standing to maintain the foreclosure action.”) (citing Bank of N.Y. v. Williams, 979 So. 2d 347, 347 (Fla. 1st DCA 2008); Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990)).

19 The same principle applies to standing such that a lack of standing must be raised by a defendant as an affirmative defense to cause the plaintiff to prove its standing. Otherwise, contrary to McLean, standing is not an issue. See note 16.

20 Lizio v. McCollum, 36 So. 3d 927, 929 (Fla. 4th DCA 2010).

21 Id.; see Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So. 3d 81, 85 (Fla. 5th DCA 2012) (“The note in question is payable to Fremont, it is indorsed in blank, and Deutsche Bank possessed the original note and filed it with the lower court. Therefore, its standing is established because it is the note holder, regardless of any recorded assignments.”).

22 Am. Home Mortgage Servicing, Inc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014) (same) (citing McLean); Bristol v. Wells Fargo Bank, N.A., 137 So. 3d 1130, 1132 (Fla. 4th DCA 2014) (same) (citing McLean); Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014) (same) (citing McLean); Zimmerman v. JPMorgan Chase Bank, Nat’l Ass’n, 134 So. 3d 501, 501 (Fla. 4th DCA 2014) (per curiam) (same) (citing McLean); Bennett v. Deutsche Bank Nat’l Trust Co., 124 So. 3d 320, 320 (Fla. 4th DCA 2013) (per curiam) (citing Rigby v. Wells Fargo Bank, 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (quoting McLean)); Dixon v. Express Equity Lending Group, LLLP, 125 So. 3d 965, 967 (Fla. 4th DCA 2013) (same) (citing McLean).

23 Hunter v. Aurora Loan Services, LLC, 137 So. 3d at 573-74.

24 Id.

25 Korte v. U.S. Bank Nat’l Ass’n, 64 So. 3d 134, 136-39 (Fla. 4th DCA 2011) (“The trial court further found that Korte was not acting in good faith based on representations of his clients as Korte had never consulted with them before filing the affirmative defenses.”) (affirming award of sanctions against defense counsel in the amount of $18,682.99); see The Fla. Bar v. Jackson, 494 So. 2d 206, 209 (Fla. 1986) (“Good faith is defined as an honest belief…[h]onesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry….It describes that state of mind denoting honesty of purpose...and, generally speaking, means being faithful to one’s duty or obligation.”) (citing Black’s Law Dictionary 623-24 (5th ed. 1979)).

26 Dixon v. Express Equity Lending Group, LLLP, 125 So. 3d 965, 967 n.1 (Fla. 4th DCA 2013); see Rodriguez v. Wells Fargo Bank, N.A., 2015 LEXIS 15239, No. 4D14-100 at *8-12 (Fla. 4th DCA Oct. 14, 2015) (Conner, J., concurring) (discussing statutory framework as to who is entitled to enforce the note).

27 Fla. Stat. §673.3011 (2015); Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 321 (Fla. 5th DCA 2013) (quoting Fla. Stat. §673.3011 (2010)); Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618, 622 (Fla. 5th DCA 2010) (quoting Fla. Stat. §673.3011).

28 It remains unexplained how a person entitled to enforce an instrument could possibly be both a nonholder and, yet, at the same time be in possession of the instrument. Assuming a person is in possession of the instrument, that person would logically be a holder, not a nonholder. Unfortunately, the Florida Legislature did not define the meaning of nonholder. But see Sandefur v. RVS Capital, LLC, 2016 LEXIS 1038, No. 4D14-543 at *4 (Fla. 4th DCA Jan. 27, 2016) (“Because the note was not indorsed, RVS Capital was a nonholder in possession.”) (citing Murray v. HSBC Bank USA, 157 So. 3d 355, 358 (Fla. 4th DCA), rev. dismissed, 171 So. 3d 117 (Fla. 2015)); Bank of New York Mellon Trust Co., N.A. v. Conley, 2016 LEXIS 233, No. 4D14-2430 at *3 (Fla. 4th DCA Jan. 6, 2016) (“Where a bank is seeking to enforce a note which is specially indorsed to another, the bank is a nonholder in possession.”) (citing Murray).

29 Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618, 622 (Fla. 5th DCA 2010).

30 See id.

31 Brandenberg v. Residential Credit Solutions, Inc., 137 So. 3d 604, 605-06 (Fla. 4th DCA 2014).

32 Id.; Miller v. Kondauer Capital Corp., 91 So. 3d 218, 219 (Fla. 4th DCA 2012) (“Nevertheless, in this case the complaint was filed by the original payee and mortgagee, who assigned its interest in the note and mortgage to the appellee during the suit, substituting appellee as the party plaintiff. Thus, appellee stands in the shoes of the original plaintiff/mortgagee.”).

33 Fla. Stat. §673.3091 (2015); see note 40, 41.

34 Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012).

35 Deutsche Bank Nat’l Trust Co. v. Huber, 137 So. 3d 562, 564 (Fla. 4th DCA 2014).

36 Id.; see Duke v. HSBC Mortgage Servs., LLC, 79 So. 3d 778, 781 (Fla. 4th DCA 2012) (providing “neither the trial court file nor the appellate record contained the actual note. Without the presence of the original note in the record, genuine issues of material fact still existed”); Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1106 (Fla. 4th DCA 2010) (per curiam) (“Because the absence of the original note created a genuine issue of material fact regarding appellee’s standing to foreclose on the mortgage, summary judgment was not proper. We reverse.”).

37 Lacombe v. Deutsche Bank Nat’l Trust Co., 2014 LEXIS 16763, No. 1D13-4094 at *8 (Fla. 1st DCA Oct. 14, 2014).

38 Cf. Rodriguez v. Wells Fargo Bank, N.A., 2015 LEXIS 15239, No. 4D14-100 at *4-6 (Fla. 4th DCA Oct. 14, 2015) (Conner, J., concurring) (“Due to plaintiffs frequently alleging alternative statuses for standing, the case law regarding standing in foreclosure cases has at times been somewhat imprecise, in large part because the cases do not always focus on and analyze the dual core elements of standing….[T]he core elements…are (1) to whom is the note payable and (2) who has possession of the note on the date suit is filed.”) (emphasis by Judge Conner); see also Focht v. Wells Fargo Bank, N.A., 124 So. 3d at 312-13 (Altenbernd, J., concurring).

39 See Fla. Stat. §702.015 (2015).

40 Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840, 842 (Fla. 1993) (“With regard to the first issue, we find that Krivanek has waived the right to raise the issue of standing because this issue has been raised for the first time in her petition to this [c]ourt. The issue of standing should have been raised as an affirmative defense before the trial court, and Krivanek’s failure to do so constitutes a waiver of that defense, precluding her from raising that issue now.”) (citing Cowart v. City of West Palm Beach, 255 So. 2d 673 (Fla. 1971)).

41 Mandell v. Fortenberry, 290 So. 2d 3, 6-7 (Fla. 1974) (“As the [d]istrict [c]ourt properly observed, the duty to plead and prove such unjust enrichment is on the defendants, since it would have been an affirmative defense or an avoidance as to which the burden of proof would rest on defendants.”); Hough v. Menses, 95 So. 2d 410, 412 (Fla. 1957) (“Furthermore the burden is on the defendant to prove his affirmative defenses.”).

42 W.J. Kiely & Co. v. Bituminous Cas. Corp., 145 So. 2d 762, 763 (Fla. 3d DCA 1962) (“The plaintiff met its burden to show a prima facie case. It was not required to disprove the affirmative defense averred by the defendant.”) (citing United States Fidelity & Guaranty Co. v. Snite, 143 So. 615 (Fla. 1932); Kimbro v. Metropolitan Life Ins. Co., 112 So. 2d 274, 277-278 (Fla. 3d DCA 1959)); see Thaller v. Waterford Point Condo. Apts., Inc., 421 So. 2d 167, 169 (Fla. 4th DCA 1982) (“Appellant raised irregularity of proxies in her affirmative defense and counterclaim. The Nationwide case does not operate to shift to appellee the burden to disprove appellant’s affirmative claims.”) (referencing Nationwide Mutual Ins. Co. v. Griffin, 222 So. 2d 754 (Fla. 4th DCA 1969)).

43 Gray v. Union Planters Nat’l Bank, 654 So. 2d 1288, 1288-89 (Fla. 3d DCA 1995).

44 Lacombe v. Deutsche Bank Nat’l Trust Co., 2014 LEXIS 16763, No. 1D13-4094 at *1-10 (reversing judgment of foreclosure where bank failed to prove its standing to foreclose at trial and remanding for entry of an order of involuntary dismissal of the action after statute of limitations had expired).

45 An affidavit of ownership proving plaintiff’s status as holder of the note would seem to suggest that, if the action proceeds to trial, sworn testimony from plaintiff’s witness should be sufficient to prove standing. However, because standing is typically a function of documentation, depending on the trial judge, testimony alone may be deemed insufficient. Cf. Jaffer v. Chase Home Finance, LLC, 155 So. 3d 1199, 1202 (Fla. 4th DCA 2015) (“Even if a foreclosure defendant waives the right to challenge the bank’s standing as of the date suit was filed, the bank must prove its right to enforce the note as of the time summary judgment is entered.”).

46 Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1128-29 (Fla. 4th DCA 2014); Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903, 907 (Fla. 1st DCA 2013) (“In sum, because the evidence of record failed to establish that Wells Fargo was the holder of the note and mortgage at the time the foreclosure complaint was filed, Wells Fargo failed to prove its standing (and failed to refute Lindsey’s affirmative defense challenging its standing) and, thus, the trial court erred in entering summary judgment in favor of Wells Fargo.”).

47 Boyd, 143 So. 3d at 1128; Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d at 906-07; Hall v. REO Asset Acquisitions, LLC, 84 So. 3d 388, 388 (Fla. 4th DCA 2012) (per curiam).

48 Id.

49 Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618, 623 (Fla. 5th DCA 2010) (“Thus, we agree with the trial court that under the documents in play in this case, Deutsche Bank had standing to foreclose the mortgage.”).

50 Bristol v. Wells Fargo Bank, N.A., 137 So. 3d 1130, 1132-33 (Fla. 4th DCA 2014).

51 Id. at 174 (emphasis in original) (citation omitted). Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277 (Fla. 4th DCA 2013).

52 Id.

53 Rigby v. Wells Fargo Bank, 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012).

54 A&B Discount Lumber & Supply, Inc. v. Mitchell, 799 So. 2d 301, 307-08 (Fla. 5th DCA 2001) (Sharp, J., concurring, in part, dissenting, in part).

55 Wells Fargo Bank, N.A. v. Bohatka, 112 So. 3d 596, 603 (Fla. 1st DCA 2013).

56 Id.; but see Fla. R. Civ. P. 1.190(c) (“When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.”); Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1286 (Fla. 2d DCA 2005) (quoting Fla. R. Civ. P. 1.190(c)).

57 Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979) (holding that foreclosure plaintiffs must show an agreement, a default, an acceleration of debt to maturity, and the amount due); Kelsey v. SunTrust Mortgage, Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014) (“To establish its entitlement to foreclosure, SunTrust needed to introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the Kelseys’ outstanding debt on the note.”) (citing Ernest); but see Citibank, N.A. v. Dalessio, 756 F. Supp. 2d 1361, 1365 (M.D. Fla. 2010) (setting forth elements including standing of a prima facie mortgage foreclosure action).

58 Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 312 (Fla. 2d DCA 2013).

59 Id. at 311.

60 District court appellate Judge Altenbernd has had his legal reasoning in his prior opinions subsequently adopted by the Florida Supreme Court. See, e.g., Shaw v. Shaw, 151 So. 3d 1228 (Fla. 2014); C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009); Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1994).

61 Focht v. Wells Fargo Bank, N.A., 124 So. 3d at 312 (Altenbernd, J., concurring).

62 Id. at 313; see also Corrigan v. Bank of Am., N.A., 2016 LEXIS 1543, No. 2D14-3208 at *7 (Fla. 2d DCA Feb. 5, 2016) (Lucas, J., concurring) (questioning the rationale of applying the affirmative defense of standing as if it were a jurisdictional prerequisite in foreclosure cases).

63 Floridians for a Level Playing Field v. Floridians Against Expanded Gambling, 967 So. 2d 832, 833 (Fla. 2007); see Florida Dep’t of Highway Safety & Motor Vehicles v. Robinson, 112 So. 3d 83, 84 (Fla. 2013) (Pariente, J., concurring) (“This [c]ourt has explained that the threshold issue of whether the question certified has been passed upon is jurisdictional.”) (citing Floridians; Pirelli Armstrong Tire Corp. v. Jensen, 777 So. 2d 973, 974 (Fla. 2001); Gee v. Seidman & Seidman, 653 So. 2d 384, 385 (Fla. 1995)); contra Radiation Technology, Inc. v. Ware Constr. Co., 445 So. 2d 329, 330-32 (Fla. 1983) (quashing district court per curiam affirmed decision without a written opinion that certified question of great public importance, without specifying the certified question).

64 Id.

65 See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (“The [d]istrict [c]ourts of [a]ppeal are required to follow Supreme Court decisions.”).

66 Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 312 (Fla. 2d DCA 2013) (“We note that the supreme court has not applied this standing principle in the exact context presented in this case,” which case was a residential mortgage foreclosure action).

H. Michael Muñiz, B.C.S., is appellate counsel with the law firm Kahane & Associates, P.A., in Plantation. He is Florida Bar board certified in appellate practice, specializing in appeals and litigation support. Muñiz obtained a B.S. in business administration from SUNY at Buffalo; a C.P.A. license from the Board of Accountancy of the State of Florida; and a J.D. from the Shepard Broad Law School at Nova Southeastern University. He is admitted to practice in all Florida state and federal courts, the District of Columbia, including the D.C. Court of Appeals, the 11th Circuit Court of Appeals, the Federal Circuit Court of Appeals, and the U.S. Supreme Court.

[Revised: 06-24-2016]