DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TAMRA FIORITO,

Appellant,

v.

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, as purchaser of 

the WASHINGTON MUTUAL BANK, f/k/a WASHINGTON MUTUAL 

BANK, P.A.,

Appellee.

No. 4D13-2813

[August 26, 2015]

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

Beach County; Janis Brustares Keyser, Judge; L.T. Case No. 

502008CA033429.

Jonathan H. Kline, Weston, for appellant.

Susan Capote and Joseph D. Wargo of Wargo & French, LLP, Miami, 

for appellee.

DAMOORGIAN, J.

Appellant, Tamra Fiorito, appeals the trial court’s entry of a final 

judgment of foreclosure in favor of JP Morgan Chase Bank, N.A. (“Chase”)

following a bench trial. We find merit in Appellant’s argument that Chase

failed to establish it had standing to foreclose when it filed its foreclosure 

complaint. Therefore, we reverse the final judgment and remand for entry 

of an order of involuntary dismissal. Because of our decision on the 

standing issue, Appellant’s remaining issues are rendered moot.

On October 28, 2008, Chase filed a two count complaint against 

Appellant, alleging one count for mortgage foreclosure and one count for 

reestablishment of a lost note. Chase alleged that it was the current owner 

and holder of the promissory note and mortgage executed by Appellant in 

June of 2006. A copy of the note and mortgage were attached to the 

complaint, identifying Washington Mutual Bank, FA (“WAMU”) as the 

original lender. The copy of the note attached to the complaint contained 

no endorsements or allonges. Chase later voluntarily dismissed its 
2

reestablishment of a lost note count and filed what it identified as the 

original note and mortgage with the court. Unlike the note attached to the 

complaint, the original note contained an undated, blank endorsement 

from WAMU.

At the bench trial, Chase presented a home loan research officer as its 

only witness. The officer identified the original note, including the 

undated, blank endorsement by WAMU. The officer, however, was unable 

to testify as to when the endorsement was placed on the note, and further 

acknowledged it was possible that the endorsement was placed on the note 

after the filing of the complaint. At no point in time did the officer testify 

that Chase was the owner and holder of the note prior to the filing of the

complaint. Both the note and mortgage were admitted into evidence 

without objection.

On appeal, Appellant argues that Chase’s filing of the original note 

containing the undated, blank endorsement with the court, coupled with 

the officer’s general testimony that Chase merged with WAMU in 

September of 2008, was insufficient to establish that Chase was the owner 

and holder of the note prior to the filing of the complaint. Chase counters 

that there is competent, substantial evidence of its authority to enforce the 

note based on the officer’s testimony that Chase acquired WAMU in 

September of 2008, approximately one month prior to the filing of the 

complaint.

In McLean v. JP Morgan Chase Bank National Ass’n, we emphasized 

that “[a] crucial element in any mortgage foreclosure proceeding is that the 

party seeking foreclosure must demonstrate that it has standing to 

foreclose” at the time it filed suit. 79 So. 3d 170, 173 (Fla. 4th DCA 2012); 

see also Saver v. JP Morgan Chase Bank, 114 So. 3d 352, 353 (Fla. 4th 

DCA 2013). As we outlined in Saver: 

A foreclosure plaintiff has standing so long as it was the holder 

of the mortgage at the time it filed suit. If the plaintiff's name 

is not on the mortgage, it can establish standing by proving 

that the mortgage was either assigned or equitably transferred

prior to the date it filed the complaint. The following evidence 

is sufficient to establish standing in such a scenario:

1) a special endorsement on the note in favor of the plaintiff 

or a blank endorsement, 2) evidence of an assignment from 

the payee to the plaintiff, or 3) an affidavit of ownership.

114 So. 3d at 353 (citations omitted).
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When a mortgage foreclosure case proceeds to a bench trial, the 

plaintiff bank need only present competent, substantial evidence that it 

has standing to foreclose. See Stone v. BankUnited, 115 So. 3d 411, 413

(Fla. 2d DCA 2013). A bank employee’s trial testimony that the plaintiff

bank owned the note before the inception of the lawsuit is sufficient to 

resolve the issue of standing. See id. (plaintiff bank provided competent,

substantial evidence that it owned and held the note prior to the filing of 

the complaint based on its employee’s testimony that the bank acquired

ownership of the note and mortgage pursuant to a purchase assumption 

agreement); see also Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So. 

3d 1222, 1223 (Fla. 2d DCA 2014).

As in the present case, “[w]here the plaintiff contends that its standing 

to foreclose derives from an endorsement of the note, the plaintiff must 

show that the endorsement occurred prior to the inception of the lawsuit.” 

McLean, 79 So. 3d at 174. Chase failed to establish that the endorsement 

was placed on the note prior to the filing of the complaint. While Chase

also could have established standing through its merger with WAMU, the 

officer’s testimony fell short of establishing that Chase acquired all of 

WAMU’s assets, including Appellant’s note and mortgage, by virtue of the 

merger. The officer only testified that Chase merged with, and “took over,” 

WAMU on September 25, 2008. The officer never testified that Chase

acquired all or any of WAMU’s assets, nor did he testify as to when Chase

became the owner of the note. Cf. Stone, 115 So. 3d at 413 (bank employee 

specifically testified that the plaintiff bank acquired all of the prior bank’s 

assets pursuant to a purchase assumption agreement). Thus, because 

Chase failed to establish when it became the owner of the note, the trial 

court erred in finding that Chase had standing to initiate the foreclosure 

action.

Accordingly, we reverse the final judgment and remand for entry of an 

order of involuntary dismissal of the foreclosure action.

Reversed and remanded.

GROSS, J. and HERSCH, RICHARD L., Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.