FLTA Member (and Darn Good Lawyer), Paul H. Minoff at McGlinchey Stafford PLLC has been doing a great job in keeping us up to date on the latest rulings affecting title for which we thank him.
In yet another opinion dealing with the issue of standing to bring and maintain a foreclosure action, the Florida 5th District Court of Appeal ruled yesterday that DBTNC's possession of the original note endorsed in blank along with its allegation in the complaint that it was the owner and holder of the note and mortgage at the time of the filing was enough to establish standing even though the assignment of mortgage to DBNTC was executed after the date of the filing of the original complaint. Here's the Opinion.
The court affirmed the view consistently espoused in the 4th DCA that the mortgage follows the note and that as long as the plaintiff had possession of the original note at the time of the filing of the complaint (or was a non-holder with the rights of the holder at the time of the filing), standing was established. It further affirmed that an assignment of mortgage is NOT required to establish standing in Florida.
Additionally, the court overturned the lower court's dismissal of DBNTC's complaint with prejudice due to DBNTC's counsel's violation of a court order, finding that the trial court did not apply all of the factors required for such a drastic remedy under the leading Florida Supreme Court case of Kozek v. Ostendorf, and further finding, among other things, that there was not any evidence that DBNTC even knew of its counsel's disregard of the court's order.
Despite these consistent standing opinions, foreclosure defense counsel are still not being dissuaded from raising standing issues in response to foreclosure complaints, and we are probably a long way away from seeing the end of these appellate opinions dealing with standing issues.