DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MIGUEL TILUS, ALTA TILUS, ROSE A. JOASEUS and KESNER 

JOASEUS,

Appellants,

v.

AS MICHAI LLC,

Appellee.

No. 4D13-3616

[ April 8, 2015 ]

ON REHEARING SUA SPONTE

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

Beach County; Kenneth Stern, Judge; L.T. Case No. 

502012CA016433XXXXMB.

Siam J. Joseph, Greenacres, for appellants.

J. Andrew Baldwin and Gabriel Pinilla of The Solomon Law Group, P.A., 

Tampa, for appellee.

PER CURIAM.

We sua sponte withdraw our previous opinion and issue the following 

in its place.

The defendants appeal a final judgment of foreclosure entered after the 

trial court granted the plaintiff’s motion for summary judgment. We 

reverse because a genuine issue of material fact remains as to whether the 

plaintiff had standing at the inception of the lawsuit.

The standard of review of an order granting summary judgment is de 

novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th 

DCA 2010).

The plaintiff must prove that it had standing to foreclose at the time the 

lawsuit was filed. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 

170, 173 (Fla. 4th DCA 2012). We clarify, however, that under the Uniform 
2

Commercial Code, a plaintiff is not required to be both the owner and 

holder of the note in order to have standing to foreclose.1 See Wells Fargo 

Bank, N.A. v. Morcom, 125 So. 3d 320, 322 (Fla. 5th DCA 2013) (“Appellees 

cite Florida Supreme Court precedent dating back to the late 1800s to 

suggest Appellant must both hold and own the note and mortgage to 

satisfy the standing requirement for a foreclosure action. The cases 

Appellees cite are not persuasive because the supreme court decided the 

cases prior to the adoption of the now-instructive and binding Florida 

UCC.”).

Instead, the plaintiff may establish standing by showing that it owns or 

holds the note, or is otherwise entitled to enforce the note. See Vidal v. 

Liquidation Props., Inc., 104 So. 3d 1274, 1276 (Fla. 4th DCA 2013) 

(explaining that “the one who owns or holds the note is entitled to 

foreclose”); Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 

2011) (“[T]he person having standing to foreclose a note secured by a 

mortgage may be . . . a nonholder in possession of the note who has the 

rights of a holder.”); § 673.3011, Fla. Stat. (2012) (identifying persons 

entitled to enforce an instrument under the UCC, and explaining that “[a] 

person may be a person entitled to enforce the instrument even though 

the person is not the owner of the instrument or is in wrongful possession 

of the instrument”). 

Where the plaintiff files the original note after filing suit, an undated 

blank endorsement on the note is insufficient to prove standing at the time 

the initial complaint was filed. Bristol v. Wells Fargo Bank, Nat’l Ass’n, 

137 So. 3d 1130, 1132 (Fla. 4th DCA 2014). Moreover, an assignment of 

mortgage, even if executed before the foreclosure action commenced, is 

insufficient to prove standing where the assignment reflects transfer of 

only the mortgage, not the note. Id. at 1133. The mortgage follows the 

assignment of the promissory note, but an assignment of the mortgage 

without an assignment of the debt creates no right in the assignee. Id.

Here, the plaintiff’s documents failed to demonstrate that the plaintiff 

had standing to foreclose at the time it originally filed suit. The undated 

1 We acknowledge that there is some imprecise language in previous opinions 

stating that a party seeking foreclosure must prove that it owns and holds the 

note. See, e.g., Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010) (“The 

party seeking foreclosure must present evidence that it owns and holds the note 

and mortgage in question in order to proceed with a foreclosure action.”) (citing 

Verizzo v. Bank of N.Y., 28 So. 3d 976, 978 (Fla. 2d DCA 2010)). However, this 

language was never intended to set forth the exclusive method by which a plaintiff 

may establish its standing in a foreclosure action.
3

blank endorsement on the original note, which was filed over a month after 

the plaintiff initially brought suit, was insufficient to prove that the 

plaintiff had standing to enforce the note at the inception of the lawsuit. 

Likewise, the “Assignment of Mortgage” from DLJ Mortgage Capital to the 

plaintiff reflected a transfer of only the mortgage, not the note. Because 

there was no proof that the plaintiff was entitled to enforce the note when 

it filed the initial complaint, the Assignment of Mortgage to the plaintiff 

was insufficient to establish the plaintiff’s standing at the inception of the 

case. Thus, a genuine issue of material fact still exists as to when the 

plaintiff took possession of the note.

We reverse the final judgment of foreclosure and remand for further 

proceedings. In light of this disposition, we decline to address the 

defendants’ other arguments for reversal.

Reversed and Remanded.

GROSS, TAYLOR and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.