DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FALLON RAHIMA JALLALI,

Appellant,

v.

CHRISTIANA TRUST, a division of WILMINGTON SAVINGS FUND 

SOCIETY, FSB, as Trustee for NORMANDY MORTGAGE LOAN TRUST, 

SERIES 2013-15,

Appellee.

No. 4D14-2369

[June 8, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Cynthia G. Imperato, Judge, and Barry J. Stone, Senior 

Judge; L.T. Case No. CACE 07-10279.

Cyrus A. Bischoff, Miami, for appellant.

Melissa A. Giasi of Kass Shuler, P.A., Tampa, for appellee.

ON MOTION TO RECALL MANDATE

KLINGENSMITH, J.

We grant appellant’s motion to recall mandate, withdraw our previous 

opinion, and substitute the following in its place:

This case presents us with yet another opportunity to resolve what has 

become a common issue for this court. Although this matter has taken a 

somewhat tortuous path through the lower court to reach us, the sole 

issue we will address among the several raised on appeal is whether there 

was sufficient evidence of Christiana Trust’s (“appellee”) standing to 

support the final judgment of foreclosure. We find that appellee lacked 

standing to foreclose, and reverse. 

On May 8, 2007, Countrywide Home Loans, Inc. filed a foreclosure 

action against Fallon Rahima Jallali (“appellant”) that contained within its 

initial pleading a count alleging a missing note. Countrywide claimed that 
2

it had been assigned the mortgage and note, but did not have possession 

of the actual documents at that time. Seven months later, Countrywide 

filed the original note and original recorded assignment of mortgage with 

the court. The note was signed by appellant and bore an undated blank 

endorsement. Although the original complaint averred that Countrywide 

was assigned the mortgage and note prior to the inception of the lawsuit, 

the record shows that the assignment actually occurred on August 8, 

2007, three months after the suit was filed. The mortgage ultimately was 

assigned to appellee, who later was substituted as plaintiff.1

The case eventually was scheduled for a non-jury trial on January 22, 

2014. Six days before that trial date, appellant filed a suggestion of 

bankruptcy and a motion to stay the proceedings in the foreclosure action. 

To ensure that the trial would proceed as scheduled, appellee’s counsel 

sought and received an order from the bankruptcy court confirming that 

an automatic stay of the foreclosure action was not in effect. The day 

before the scheduled proceedings, appellant’s counsel informed appellee’s 

counsel that he received an e-mail from the court stating that the non-jury 

trial had been removed from the docket as a result of a suggestion of 

bankruptcy being filed.2 Appellee’s counsel did not agree the non-jury trial 

was cancelled. She informed appellant’s counsel that an automatic stay 

was not in effect and that appellee would proceed with trial as scheduled 

if the bankruptcy court confirmed the absence of any stay. 

On the morning of January 22, the bankruptcy court confirmed that 

an automatic stay was not in effect. Later that afternoon, appellee’s 

counsel came to court and checked the trial docket posted outside the 

courtroom to confirm the non-jury trial remained scheduled for 1:30 p.m. 

She also announced the case to the courtroom, and determined that 

appellant was not present. After receiving testimony from appellee’s 

witnesses, the trial court immediately entered final judgment for appellee.

1 On or about January 29, 2013, Countrywide assigned the note and mortgage 

to LEX Special Assets, LLC, which in turn assigned the note and mortgage to 

appellee on November 7, 2013. On December 10, 2013, the trial court granted 

appellee’s motion to substitute itself as plaintiff in the foreclosure action. 

However, in its motion for substitution, appellee alleged that Countrywide had 

been assigned the note and mortgage on August 8, 2007, after the initial 

complaint was filed.

2 The e-mail was not received by appellee’s counsel, and referred to proceedings 

scheduled for February 14, 2013, even though the case number referred to the 

instant case, which was set for non-jury trial on January 22, 2014.
3

The following day, appellant’s counsel sought out a duty judge to “set 

things right,” arguing that the case had proceeded despite being ostensibly 

cancelled by the e-mail. That duty judge was persuaded to schedule an 

evidentiary hearing on January 24, 2014, wherein the court issued a 

vacatur of foreclosure.3

After learning that the final judgment had been vacated by the duty 

judge, appellee in turn sought to vacate the vacatur of foreclosure, arguing 

in part that it had been obtained by an ex-parte communication with the 

court. The case then was assigned to a magistrate judge for an evidentiary 

hearing on the issue. Following the hearing, the magistrate recommended 

that the final judgment be vacated due to the trial’s cancellation, and that 

the vacatur of foreclosure be vacated because appellee was not notified

about the hearing and did not attend.

Appellee filed an exception to the magistrate’s report. After multiple 

additional hearings, the trial court granted appellee’s motion to vacate the 

vacatur of foreclosure and reinstated the final judgment. In so doing, the 

trial court explicitly chose not to adopt the magistrate’s report.

Two weeks later, appellant again moved to vacate the final judgment 

pursuant to Florida Rule of Civil Procedure 1.540(b), this time alleging 

fraud upon the court. The trial court denied that motion and this appeal 

ensued.

We have repeatedly stated that:

“A crucial element in any mortgage foreclosure proceeding 

is that the party seeking foreclosure must demonstrate that it 

has standing to foreclose.” McLean v. JP Morgan Chase Bank 

Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). The 

plaintiff must prove that it had standing to foreclose when the 

original complaint was filed. Id.

Kenney v. HSBC Bank USA, Nat’l Ass’n, 175 So. 3d 377, 379 (Fla. 4th DCA 

2015).

3 Appellee states that it was not made aware of this hearing and never given a 

copy of the vacatur of foreclosure. Appellee claims it first learned that the final 

judgment had been vacated when appellant later filed a separate quiet title action 

against appellee.
4

As always, “a party must have standing to file suit ‘at its inception and 

may not remedy this defect by subsequently obtaining standing.’” Gascue 

v. HSBC Bank, U.S.A., 97 So. 3d 263, 264 (Fla. 4th DCA 2012) (quoting 

Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 

2012)). When the foreclosing party is not the original lender, it “may 

establish standing to foreclose a mortgage loan by submitting a note with 

a blank or special endorsement, an assignment of the note, or an affidavit 

otherwise proving the plaintiff’s status as the holder of the note.” Kenney, 

175 So. 3d at 379 (quoting Focht v. Wells Fargo Bank, N.A., 124 So. 3d 

308, 310 (Fla. 2d DCA 2013)).

If the foreclosing party “asserts standing based on an undated 

endorsement of the note, it must show that the endorsement occurred 

before the filing of the complaint through additional evidence, such as the 

testimony of a litigation analyst.” Id. (quoting Lloyd v. Bank of N.Y. Mellon, 

160 So. 3d 513, 515 (Fla. 4th DCA 2015)). When a plaintiff attempts to 

foreclose based upon an undated, blank-endorsed note that it filed after

the initial complaint, and provides no proof that it was the holder or 

authorized representative of the holder prior to the inception of the lawsuit, 

it fails to prove its standing to foreclose. See, e.g., Perez v. Deutsche Bank 

Nat’l Trust Co., 174 So. 3d 489, 490-91 (Fla. 4th DCA 2015) (reversing final 

judgment of foreclosure where bank attempted to prove standing based in 

part upon an undated blank-endorsed note filed after the initial complaint, 

but failed to provide evidence that it possessed the note prior to the time 

suit was filed).

A substituted plaintiff can acquire standing to foreclose if the original 

party had standing. Assil v. Aurora Loan Servs., LLC, 171 So. 3d 226, 227 

(Fla. 4th DCA 2015) (“Pursuant to Florida Rule of Civil Procedure 1.260, a 

substituted plaintiff acquires the standing of the original plaintiff.”)

(quoting Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351, 353 n.4 (Fla. 1st 

DCA 2014)). In this case, the record is devoid of any proof that 

Countrywide had possession of the blank-endorsed note prior to the 

inception of the lawsuit. Appellee also failed to prove that Countrywide 

had standing to foreclose based upon the assignment of mortgage, as it 

was clear the assignment took place after suit was filed. See Balch v. 

LaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015) (reversing a 

foreclosure judgment in part because the “assignment [of the mortgage] 

was executed after the complaint was filed”).
5

Accordingly, we reverse the final judgment of foreclosure for lack of 

standing and remand with instructions for the trial court to enter an 

involuntary dismissal in favor of appellant.

Reversed and Remanded.

GROSS and GERBER, JJ., concur.