Lack of Standing Is an Affirmative Defense – Wells Fargo Bank, N.A. v. Reeves

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In this mortgage foreclosure case, the trial court dismissed the lender’s complaint for fraud on the court.  One aspect of the supposed “fraud” was the lender’s allegation that it had standing to sue on behalf of a valid securitized trustee.  Reciting the law on contesting standing, the appellate court stated, “Lack of standing is an affirmative defense.  Generally, this affirmative defense must be asserted in the responsive pleading and the issue is then determined upon evidence presented or the party’s inability to produce sufficient evidence of its standing.”  In this case, because the borrower had only moved to dismiss and had not yet filed an answer, the appellate court reversed on the basis that “this issue was not properly before the trial court at the pre-answer stage of the litigation.”

Wells Fargo Bank, N.A. v. Reeves, 37 Fla. L. Weekly D1381a (Fla. 1st DCA June 13, 2012)