IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA 

FIFTH DISTRICT 

 

 NOT FINAL UNTIL TIME EXPIRES TO 

 FILE MOTION FOR REHEARING AND 

 DISPOSITION THEREOF IF FILED 

 

DEUTSCHE BANK NATIONAL TRUST 

COMPANY, ETC., 

 Appellant, 

v. Case No. 5D15-143 

ARI F. MARCIANO, ET AL., 

 Appellees. 

________________________________/ 

Opinion filed April 8, 2016 

Appeal from the Circuit Court 

for Orange County, Charles N. 

Prather, Senior Judge. 

Michael W. Smith, of Baker, Donelson, 

Bearman, Caldwell & Berkowitz, PC, 

Orlando, for Appellant. 

Robert A. Fox, of Fox & McAdams, PLLC, 

Orlando, for Appellees. 

PALMER, J. 

In this foreclosure matter, Deutsche Bank National Trust Company, the lender, 

appeals the trial court's order entering final judgment in favor of the borrowers, Ari and 

Nilda Marciano. The trial court held that the lender had failed to present sufficient 

evidence as to standing. Determining that the record contains sufficient evidence of 

standing, we reverse. 
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The borrowers executed a promissory note in favor of American Brokers Conduit, 

with an accompanying mortgage. Thereafter, pursuant to the terms of a pooling and 

servicing agreement (PSA), the note was transferred into a trust, with the lender as 

trustee. The borrowers failed to pay the monthly installment due on April 1, 2008, and 

they made no further payments. Consequently, the lender filed this foreclosure action 

against the borrowers; the lender did not attach a copy of the note to the complaint. The 

borrowers answered and raised various affirmative defenses, including the defense that 

the lender lacked standing to foreclose. The lender subsequently filed the original note 

with the trial court; the note contained an undated indorsement in blank. The case 

proceeded to trial. 

At trial, the only witness called by either party was Sally Torres, a senior litigation 

specialist employed by the current servicer of the subject loan, Ocwen Loan Servicing. 

Through Torres, the following documents were admitted into evidence: the original note, 

a copy of the mortgage, the PSA, a power of attorney authorizing Ocwen to service the 

borrowers' loan, the borrowers' payment history, and default letters. 

 Of importance to this appeal, the parties to the PSA included: 1) American Home 

Mortgage Assets LCC (as depositor), 2) Wells Fargo Bank, N.A., (as Master Servicer 

and Securities Administrator), and 3) the lender (as trustee). The PSA evidenced a 

closing date which pre-dated the filing of the instant complaint. Also, the PSA contained 

a Master Loan Schedule (MLS) which “list[ed] . . . all the loans that [were] in the [pool or 

trust].” Torres identified the borrowers' loan in the MLS, and stated that the MLS showed 

that the lender had possession of the borrowers' note prior to the closing of the pool or 

trust. Moreover, section 2.01 of the PSA provided: 
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The Depositor, as of the Closing Date, and concurrently with 

the execution and delivery hereof, does hereby assign, 

transfer, sell, set over and otherwise convey to the Trustee 

without recourse all the right, title and interest of the 

Depositor in and to the Mortgage Loans identified on the 

Mortgage Loan Scheduled . . . . In connection with such 

transfer and assignment, the Depositor has caused the 

Sponsor, with respect to each Mortgage Loan, to deliver to, 

and deposit to or at the direction of the Trustee, as described

in the Mortgage Loan Purchase Agreement, with respect to 

each Mortgage loan, the following documents or 

instruments: . . . (a) the original Mortgage Note endorsed 

without recourse to the order of the Trustee or in blank . . . . 

Upon review of the evidence, the trial court entered judgment in favor of the borrowers, 

concluding that the lender had not presented sufficient evidence as to its standing to 

foreclose upon the note. 

The lender contends that the trial court erred in concluding that it lacked standing 

to foreclose because the PSA demonstrated that it had possession of the 

blank-indorsed note at the time the complaint was filed. We agree. 

A “de novo standard of review applies when reviewing whether a party has 

standing to bring an action.” Figueroa v. Fed. Nat.'l Mortg. Ass'n, 180 So. 3d 1110, 1115 

(Fla. 5th DCA 2015). See also Gorel v. Bank of New York Mellon, 165 So. 3d 44, 46 

(Fla. 5th DCA 2015). 

“‘A crucial element in any mortgage foreclosure proceeding is that the party 

seeking foreclosure must demonstrate that it has standing to foreclose, when the 

complaint is filed.” Angelini v. HSBC Bank USA, N.A., 41 Fla. L. Weekly D370 (Fla. 4th 

DCA Feb. 10, 2016) (quoting McLean v. JP Morgan Chase Bank Nat.'l Ass'n, 79 So. 3d 

170, 173 (Fla. 4th DCA 2012)). In Gonzalez v. BAC Home Loans Servicing, L.P., 180 

So. 3d 1106 (Fla. 5th DCA 2015), we explained: 
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The requirements for standing are provided in section 

673.3011, Florida Statutes, (2009), as follows: 

The term “person entitled to enforce” an instrument means: 

(1) The holder of the instrument; 

(2) A nonholder in possession of the instrument who has the 

rights of a holder; or 

(3) A person not in possession of the instrument who is entitled to 

enforce the instrument pursuant to s. 673.3091 or s. 673.4181(4). 

Id. at 1108. A lender may prove its status as holder by introducing evidence that it had 

possession of the original note, bearing a blank indorsement, at the time the foreclosure 

complaint was filed. Angelini, 41 Fla. L. Weekly D370. 

Relying on the MLS, Torres testified that the subject note became a trust asset 

prior to the trust’s closing, which pre-dated the filing of the complaint. Section 2.01 of 

the PSA, in turn, provides that “the Depositor has caused the Sponsor, with respect to 

each Mortgage Loan, . . . to deliver . . . [to] the Trustee the original Mortgage Note 

endorsed without recourse to the order of the Trustee or in blank.” Thus, the lender 

presented sufficient evidence that it had possession of the blank-indorsed note prior to 

the filing of the complaint and, therefore, had standing to foreclose.1 Decisions from 

courts outside of Florida are consistent with our holding. See, e.g., Deutsche Bank Nat.'l 

Tr. Co. v. Pietranico, 928 N.Y.S. 2d 818, 823 (Sup. Ct. 2011) (relying on comparable 

PSA provision in holding that the lender proved its standing to foreclose), aff'd, 102 

 1 We have not overlooked our decision in Schmidt v. Deutsche Bank, 170 So. 3d 

938, 940 (Fla. 5th DCA 2015) or the Fourth District’s recent decision in Lewis v. U.S. 

Bank Nat.'l Ass'n, No. 4D14-815 (Fla. 4th DCA Mar. 9, 2016). In each case, the court 

determined that the lender failed to prove standing despite the admission of a PSA. 

Lewis; Schmidt. However, neither decision discussed any particular provisions of the 

respective PSAs. Our independent research has found no Florida decision discussing 

comparable language in a PSA within the context of a lender’s standing to foreclose. 
5

A.D.3d 724, 957 N.Y.S.2d 868 (2013); accord OneWest Bank, F.S.B. v. Jacobs, 333 P. 

3d 979, 981 (Okla. Civ. App. 2014). 

REVERSED and REMANDED. 

LAWSON, C.J. and SAWAYA, JJ., concur.