Lack of Standing is an Affirmative Defense

Appellant Robert J. Stoltz prevailed against Aurora Loan Servicing and Nationstar Mortgage in Florida’s Second District Court of Appeals. Honorable Judge Daniel R. Monaco reversed the final foreclosure judgment ruling that the plaintiff’s failure to prove standing at the inception of the suit was fatal (see Dickson v. Roseville Props., LLC, 40 Fla. L. Weekly D2520 (Fla. 2d DCA Nov. 6, 2015- quoting, “For better or for worse, it is settled that it is not enough for the plaintiff to prove that it has standing when the case is tried; it must also prove that it had standing when the complaint was filed.”).

Nationstar Mortgage had filed suit against homeowner, Robert Stoltz, and a different servicer named Aurora Loan Servicing was substituted as plaintiff prior to the trial. In the lower court the servicer claimed they were the holder of the note, not that they were foreclosing on behalf of a holder. Stoltz raised the question of standing at inception by pleading lack of standing as an affirmative defense in his amended answer.

Standing at inception of a lawsuit is required in Florida. The present servicer was required to prove at trial that the original servicer (the one that filed to foreclose) held the note at the time the case was filed (see: Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015)).

During the trial, the present servicer attempted to achieve this burden by presenting a note bearing an undated indorsement in blank. An indorsement in blank is considered legally sufficient to prove that the person in possession of the note is a holder and has standing to proceed at trial (see: Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013).


However, the indorsement in this case was undated and was not attached to the original complaint, and therefore was insufficient to prove that the original servicer held the note at the inception of the case. Without additional evidence that the original servicer actually possessed the Note at the inception of the case- the case should have been dismissed (see: Sorrell v. U.S. Bank Nat’l Ass’n, 41 Fla. L. Weekly D847 (Fla. 2d DCA Apr. 6, 2016)).

The current servicer’s only evidence of standing presented was the testimony of its corporate representative. The testimony of this representative failed to establish that the original servicer held the note when the case was filed. Therefore, the current servicer could not prove standing at inception. The borrower’s motion for involuntary dismissal should have been honored in this case (see Russell, 163 So. 3d at 643; May v. PHH Mortg. Corp., 150 So. 3d 247, 249 (Fla. 2d DCA 2014)).

The court took into consideration that the operative complaint attached a copy of an
assignment purporting to transfer both the note and mortgage to the original servicer priorto the date suit was originally filed. That document may have proven that the first
servicer had standing at inception (see: Focht, 124 So. 3d at 310 (“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.”). However, the current servicer, failed to admit this document into evidence during trial.

On Appeal, the servicers did not argue and failed to cite any authority that the assignment was sufficient to support the judgment when standing is contested during trial (see: Beaumont v. Bank of N.Y. Mellon, 81 So. 3d 553, 555 n.2 (Fla. 5th DCA 2012)- a copy of an assignment of a note in the court file was not competent evidence where it was never authenticated and offered into evidence). The final judgment was reversed and the case remanded back to the trial court with directions to enter an order of involuntary dismissal. With Florida’s lack of a statute of limitations on foreclosures, the servicer will likely have ample time to “correct” their deficiencies and errors and attempt to foreclose again ad nauseum.


Congratulations to attorney Nicole R. Moskowitz of Neustein Law Group, Aventura representing Appellant Robert Stoltz.

7 Responses

  1. Please clarify something…. there is a new 2013 foreclosure law in florida a state statute that states the holder of the note must certify under penalty of purjery the note contemporously, (before) filing suit. The statute states exactly what this certification is suppose to say. most banks arenot doing htis, and judges are not enforcing this. so the law in florida changed. they can not just except the undated stamped in blank note as standing. why are judges not adjudicating to written law?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????

  2. …and re file they will, putting the homeowner back in a vulnerable position when finances are already stretched. Why didn’t judge just dismiss with prejudice?

  3. all thanks to pam bondi and the 2012 settlement, the money was not used to help homeowners but to pay thse senior judges who took “2” classes in law school on foreclosures, 1/2 fell asleep, the other 1/2 never defended foreclosures. these are coerced defaults thse are not foreclosures of yesteryear these foreclosures are by design

  4. and the fact that unelected senior judges are ruling over these foreclosures??? now accountability to do the right thing for their constituents. so the fraud in foreclosure contnues. they do not have to follow rules of law and state stautes. judges are not up holding laws already in place they are creating new laws?

  5. when will all end? when will they stop trying to steal our homes. i am extremely depressed this years

  6. Indeed the courts give them more leeway than ever. I proved Nationstar(Aurora) had no standing at inception over and over. I proved they hadn’t produced the paper trail. I had all the right stuff in my documents. The lower court upheld them, the court of appeals concured with the lower court without any explanation, hypocritically going against other case law coming out of that 2nd district as well as other FL district courts of appeal, would not give an opinion, would not reconsider and there you have the corruption and indifference and disgusting truth about the florida courts.

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