The legal right to enforce, by judicial proceeding, a promissory note and mortgage is referred to as “standing”. This has been a hot topic in Florida foreclosure cases with courts holding that standing must exist when the suit is filed and, if it does not, the lack of standing is a defect that cannot be cured once the foreclosure suit has begun (though this question has recently been certified to the Florida Supreme Court).

So, is standing included as an element in a cause of action that a foreclosing plaintiff must prove or is it an affirmative defense that must be raised by the defendant? In a recent 5th DCA opinion, the district court found both to be correct. In Beaumont v. Bank of New York Mellon, Inc., the Court reversed the trial court’s entry of summary judgment as the bank was unable to demonstrate that it had standing to bring the lawsuit. The defendant had apparently not raised standing as an affirmative defense in its pleadings, doing so for the first time at the summary judgment hearing. The bank argued that standing, as an affirmative defense, was waived as the defendant had not raised it in its pleadings.

The 5th DCA found that the foreclosing plaintiff “… must prove its right to enforce the note as of the time the summary judgment is entered, even if Beaumont (the defendant) had waived the right to challenge the bank’s standing…” The Court further stated that, while standing is an affirmative defense and it can be waived, in cases where the facts giving rise to a standing issue were not known to the defendant at the time it filed an answer, it could in fact raise the issue for the first time at summary judgment.

There are a few complicating factors in the Beaumont case. For one, it involved allegations of reestablishing a lost instrument which have their own statutory pleading requirements. In addition, the judgment being appealed had been entered in favor of a non-party to the lawsuit (apparently the original plaintiff who later withdrew from the case in deference to the real note holder). Its no surprise then that the bank did not prevail here. Still, I think the case supports two points: (1) the plaintiff cannot count on standing being waived if the facts suggest that the defendant may not have been able to know about standing-related issues in time to raise them in its answer to the complaint and, (2) even if waived as a defense, standing is still the plaintiff’s burden and must be supported by evidence.