NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

VINCE ARCURI, a/k/a VINCENT ARCURI, )

individually and as trustee of The 18913 )

Chaville Road Residential Land Trust, )

Under Trust Dated April 15, 2008, )

)

Appellant, )

)

v. ) Case No. 2D16-4201

)

HSBC BANK USA, NATIONAL )

ASSOCIATION, as trustee for SG )

Mortgage Securities Trust 2006-FREI, )

Asset Backed Certificates, Series FREI, )

)

Appellee. )

)

Opinion filed March 2, 2018.

Appeal from the Circuit Court for

Hillsborough County; Mark D. Kiser, Judge.

Nick Fowler and Sami Thalji of Stamatakis +

Thalji + Bonanno, Tampa, for Appellant.

Karusha Y. Sharpe and M. Hope Keating of 

Greenberg Traurig, P.A. Tallahassee, and

Michele L. Stocker of Greenberg Taurig,

P.A., Fort Lauderdale, for Appellee.

NORTHCUTT, Judge.

Vincent Arcuri contends that the final judgment foreclosing his mortgage 

must be set aside because the bank failed to prove its standing to foreclose. We agree 

and reverse.
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HSBC Bank USA, National Association, filed a complaint alleging that 

Arcuri was in default because he had stopped making payments on his mortgage and 

that the bank was entitled to enforce the note as a holder in possession and to foreclose 

on the mortgage. In his affirmative defenses, Arcuri asserted that the bank did not have 

standing because the note had not been properly endorsed and assigned to the bank. 

At trial, the note and mortgage were admitted into evidence. The note 

reflected that the lender was Fremont Investment and Loan. An allonge to the note 

purported to transfer it to HSBC Bank from SGGH, LLC, successor in interest to 

Fremont Reorganizing Corporation, f/k/a Fremont Investment and Loan. The bank 

called Debra Kavalry as its only witness. She testified that she worked for Wells Fargo 

Bank, N.A., which serviced the loan in question for the bank. When the bank sought to 

introduce the note, Arcuri conducted a voir dire wherein Kavalry testified that she had 

no documentation showing that Fremont Reorganization Corporation was formerly 

known as Fremont Investment and Loan or that SGGH was the successor in interest to 

Fremont Reorganization Corporation. Arcuri objected to the introduction of the allonge, 

but he was overruled. 

Following the bank's case, Arcuri called Kavalry as a witness. She 

testified that she had no personal knowledge that Fremont Reorganization Corporation 

was formerly Fremont Investment and Loan and she had nothing in writing to establish 

such. She also testified that she had no personal knowledge that SGGH was the 

successor in interest to Fremont Reorganization Corporation. In closing argument, 

Arcuri contended that the bank did not prove standing because it failed to establish that 

its assignor, SGGH, was a successor in interest to the original lender Fremont 
- 3 -

Investment and Loan. Arcuri relied on Gee v. U.S. Bank National Ass'n, 72 So. 3d 211 

(Fla. 5th DCA 2011), in support of his argument.

This court in American Home Mortgage Servicing, Inc. v. Bednarek, 132 

So. 3d 1222, 1223 (Fla. 2d DCA 2014), reiterated the black letter law regarding standing 

to foreclose: 

A party seeking foreclosure must establish that it had 

standing to foreclose at the time it filed the complaint. A 

foreclosure plaintiff has standing if it owns and holds the 

note at the time suit is filed. A plaintiff may also establish 

standing to foreclose by submitting evidence of a special 

endorsement on the note in favor of the plaintiff or a blank 

endorsement, an assignment from the payee to the plaintiff, 

or an affidavit of ownership.

(Citations omitted.) Here, the bank alleged in the complaint that it was the holder in 

possession of the note. But it could only be a holder in possession with standing to 

foreclose the mortgage if there was a valid assignment of the note by SGGH as the 

successor in interest to Fremont Investment and Loan. 

The court in Gee considered a very similar situation: 

To prove its ownership, U.S. Bank filed a copy of the 

Mortgage [denoting the mortgage and note] as well as two 

assignments. The first assignment transferred the Mortgage 

from Advent Mortgage, the original mortgagee, to Option 

One. The second assignment purported to transfer the 

mortgage from American Home, as successor in interest of 

Option One, to U.S. Bank. However, and significant to our 

consideration, U.S. Bank provided nothing to demonstrate 

how American Home came to be the successor in interest to 

Option One.

72 So. 3d at 213. The court then stated: 

When Ms. Gee denied that U.S. Bank had an interest in the 

Mortgage, ownership became an issue that U.S. Bank, as 

the plaintiff, was required to prove. As U.S. Bank failed to 

offer any proof of American Home's authority to assign the 
- 4 -

Mortgage, we conclude that it failed to establish its standing 

to bring the foreclosure action as a matter of law.

Id. at 214 (citations omitted). 

Here, Arcuri specifically challenged the chain of assignments based on the 

holding of Gee. Because the bank failed to offer any proof of SGGH's authority to 

assign the note to the bank, the bank failed to establish standing. Accordingly, we 

reverse the final judgment of foreclosure and remand for entry of a final order of 

involuntary dismissal. See Buckingham v. Bank of Am., N.A., 230 So. 3d 923, 925 (Fla. 

2d DCA 2017). 

Reversed and remanded with instructions.

CASANUEVA and BLACK, JJ., Concur.