There have been several articles posted on this blog on the subject of standing – the legal right to enforce a promissory note and/or mortgage. This continues to be a popular issue for defense counsel to raise and, as a result, relevant and current caselaw is abundant.
I have a couple of observations in this regard. First, the majority of reported decisions involve appeals of entry of summary final judgment. Florida attorneys understand that the standard for entry of summary judgment involves a finding that there are no disputed issues of material fact. In many of the cases on standing, the plaintiff lender failed to establish this at the summary judgment hearing. That does not mean that in all of these cases standing cannot be established. It may ultimately be if the summary judgment preparation and hearing is done correctly with adequate evidence of standing presented.
Another observation is that many of the decisions are involving cases that were not subject to Florida Statutes Section 702.015 created under HB 87. This statute requires plaintiffs in certain residential foreclosure cases to verify that they have possession of the original note prior to filing suit and to include in their complaints the specific factual basis by which they are entitled to enforce the note. It seems to me that this statutory requirement may help in reducing the number of successful challenges to standing.
The bottom line for now is that those seeking to enforce a note and/or foreclose a mortgage must continue to scrutinize their documents prior to foreclosure and make sure their complaints are carefully drafted in this regard. Of particular concern is making sure the various assignments, allonges and endorsements needed to support a claim of standing are present and accounted for.
In a future post, I will address a couple of the more recent court decisions on this issue.