Key to Winning Foreclosure Failure to prove standing goes away

Fourth DCA: Note in Servicer’s Possession is Not Contrary Evidence

In a decision today out of the the Fourth District Court of Appeal, Deutsche Bank National Trust Co. v. Applewhite, the appellate court held that even where there is evidence that another party was in possession of the note when the foreclosing party filed suit, that will not always prevent an Ortiz presumption of possession from applying to the case.  The 4DCA held that “A loan servicing agent is a proper representative to possess a mortgage note on behalf of the plaintiff, such that the plaintiff remains in constructive possession of the note as the holder sufficient to establish standing.”  This decision may go further than Meilleur v. HSBC Bank USA, N.A., 194 So. 3d 512, 513 (Fla. 4th DCA 2016), a decision out of the Fourth from last year, because in Meilleur the noteholder introduced evidence of the agency relationship established between the noteholder and the servicer.  In today’s case it does not appear that any evidence of an agency relationship was introduced into evidence.

Key to Winning Foreclosure Gets Harder
Key to Winning Foreclosure Gets Harder

What This Means Going Forward

This decision may make it much easier for plaintiffs to prove their standing to foreclose, and it will require Homeowners counsel to introduce evidence that rebuts the establishment of an agency relationship between the plaintiff and the party in actual possession of the note. If the servicer is the holder of the note at the time suit is filed and another party files suit, the case has the chance of getting dismissed for lack of standing.  In those cases the proper party to bring suit would normally be the servicer. It’s important to note that there have been numerous cases where there was NOT an agency relationship between the owner of a note and the servicer in possession of the note.

Contact Our Plantation Florida Foreclosure Lawyers

Contact the Plantation Florida Foreclosure Lawyers at Light & Gonzalez, PLLC to speak with attorneys ready to fight the bank to try to keep you in your home.

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