DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SARIT J. ASSIL n/k/a SARIT LEVY,

Appellant,

v.

AURORA LOAN SERVICES, LLC, SOHEIL ASSIL, and any and all 

unknown parties claiming by, through, under, and against the herein 

named individual defendant(s) who are not known to be dead or alive, 

whether said unknown parties may claim an interest as spouses, heirs, 

devises, grantees or other claimants, VICTORIA GROVE HOMEOWNERS 

ASSOCIATION, INC., JOHN DOE and JANE DOE, as unknown tenants 

in possession,

Appellees.

No. 4D14-2257

[ August 12, 2015 ]

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

Beach County; Howard H. Harrison, Senior Judge; L.T. Case No. 

502008CA025998XXXXMB.

Craig A. Boudreau, Wellington, for appellant.

Nancy M. Wallace of Akerman LLP, Tallahassee, William P. Heller of 

Akerman LLP, Fort Lauderdale, and Celia C. Falzone of Akerman LLP, 

Jacksonville, for Appellee-Aurora Loan Services, LLC.

PER CURIAM.

We reverse the final judgment of foreclosure entered in favor of appellee 

Nationstar Mortgage, LLC, successor in interest to Aurora Loan Services, 

LLC (Aurora), because appellee failed to establish by competent evidence 

that Aurora had standing to enforce the mortgage when it filed the 

mortgage foreclosure action.

Whether a party has standing to bring an action is reviewed de novo. 

Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 

2014).

“The plaintiff must prove that it had standing to foreclose when the 
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complaint was filed.” Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 

1276 (Fla. 4th DCA 2013) (quoting McLean v. JP Morgan Chase Bank Nat’l 

Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)) (quotation marks omitted). 

“Pursuant to Florida Rule of Civil Procedure 1.260, a substituted plaintiff 

acquires the standing of the original plaintiff.” Kiefert v. Nationstar Mortg., 

LLC, 153 So. 3d 351, 353 n.4 (Fla. 1st DCA 2014).

“[S]tanding may be established from a plaintiff’s status as the note 

holder, regardless of any recorded assignments.” McLean, 79 So. 3d at

173. A person entitled to enforce an instrument is either the “holder of 

the instrument,” the “nonholder in possession of the instrument who has 

the rights of a holder” or “[a] person not in possession of the instrument

who is entitled to enforce the instrument . . . .” § 673.3011, Fla. Stat. 

(2008). A “holder” is defined as “[t]he person in possession of a negotiable 

instrument that is payable either to bearer or to an identified person that 

is the person in possession.” § 671.201(21)(a), Fla. Stat. (2008). “If the 

note does not name the plaintiff as the payee, the note must bear a special 

endorsement in favor of the plaintiff or a blank endorsement.” McLean, 79 

So. 3d at 173.

In Seffar v. Residential Credit Solutions, Inc., 160 So. 3d 122, 123 (Fla. 

4th DCA 2015), this court found that a substituted plaintiff failed to prove 

the original plaintiff had standing to file the foreclosure complaint. The 

original plaintiff/servicer, RCS, alleged that it had the right to enforce the 

note and mortgage. Id. The note attached to the complaint named another 

institution as the original lender and did not contain any endorsements or 

allonges. Id. After filing the complaint, RSC filed the original note with an 

undated blank allonge, payable to the bearer. Id. Before trial, RSC 

substituted Bayview Loan Servicing as plaintiff. Id. at 123-24.

At trial, Bayview failed to prove that RCS was the holder or that RCS or 

itself was a nonholder in possession. Id. at 125-26. As an alternative 

proof of ownership of the note and mortgage, Bayview relied on a letter 

from RCS to the homeowners, notifying them of the transfer of servicing 

rights to RCS. Id. at 126. Bayview sent out a similar letter when it 

obtained servicing rights. Id. Neither letter addressed RCS’s or Bayview’s 

rights to enforce the note. Id. Moreover, Bayview did not introduce RCS’s

or Bayview’s servicing agreements into evidence to prove what rights they 

acquired under those agreements. Id. This court reversed because the 

evidence presented was inadequate to prove standing. Id. at. 127.

Similar to the situation in Seffar, Nationstar failed to provide any 

evidence, such as a servicing agreement, to prove that Aurora had the right 

to enforce the Note when it filed the foreclosure action. Aurora filed its 
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foreclosure complaint on August 25, 2008. In the original complaint, 

Aurora alleged that it was the owner or holder of the Note and that the 

Note was lost. Aurora subsequently amended the complaint three times. 

In the First Amended Complaint, Aurora dropped the lost note count and 

attached a copy of the Note to the complaint, with a special endorsement 

to Deutsche Bank. In the Third Amended Complaint, instead of alleging 

that it was the owner or holder of the Note, Aurora alleged that it was a 

servicing agent for Deutsche Bank and that it was authorized to prosecute 

the foreclosure action on behalf of Deutsche Bank.

At trial, Nationstar presented evidence that Deutsche Bank was the 

owner of the Note when Aurora filed the complaint. The original Note 

contained a special endorsement to Deutsche Bank, and Nationstar’s only 

witness testified that Deutsche Bank was the owner of the Note. 

Nationstar introduced into evidence a print screen from Aurora’s system 

which shows the scanned copy of the Note including a special endorsement 

to Deutsche Bank. The print screen was dated August 22, 2008, three 

days prior to Aurora filing the complaint.

Appellee failed to establish that Aurora had standing to sue on the date 

of the filing of the suit where there was no assignment of the mortgage and 

Note, no blank or special endorsement in favor of Aurora on the promissory 

Note, and no competent evidence that Aurora held the Note on the date it 

filed suit.

Because Aurora was not shown to be the holder of the Note, it 

essentially proceeded under the theory that it was a nonholder in 

possession of the Note with the rights of a holder. However, Aurora failed 

to provide sufficient proof that it was authorized at any time to prosecute 

the foreclosure action on behalf of Deutsche Bank. In short, there was 

insufficient proof that Aurora was the holder of the Note or was otherwise 

a person entitled to enforce the Note at the time it filed the action. 

Accordingly, we reverse the final judgment of foreclosure and remand for 

the trial court to enter an order of involuntary dismissal.

Reversed and Remanded.

TAYLOR, MAY and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.