NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

ONEWEST BANK, FSB, ) ) Appellant, ) ) v. ) Case No. 2D14-2397 ) DEBRA CUMMINGS and BENJAMIN ) CUMMINGS, ) ) Appellees. ) ________________________________ ) Opinion filed August 12, 2015. Appeal from the Circuit Court for Pinellas County; David A. Demers, Senior Judge. Tony Perez of Blank Rome LLP, Tampa, for Appellant. Michael F. Singer of Singer Law, P.A., St. Petersburg, for Appellees.

KELLY, Judge.

OneWest Bank, FSB, appeals from t he order dismissing its forec losure action against Debra and Benjamin Cummings. Because we conclud e OneWest had standing to foreclose at the time it filed the foreclosure comp laint, we reverse.- 2 - The Cummings executed an adjustable rate note and mortgage in favor of IndyMac Bank in 2006. The loan was later acquired by OneWest a nd upon the Cummings' default, OneWest filed its verified complaint to fore close in 2011. OneWest attached to its complaint a copy of the mortgage and the adjust able rate note with a blank endorsement. A separate page with a blank endorsement fr om IndyMac Bank was also attached to the complaint; neither endorsement was dat ed. At the nonjury trial, Fredrick Denson, a loan analyst for Ocwe n Loan Servicing, LLC, testified that Ocwen serviced the Cummings' loa n on behalf of OneWest. A limited power of attorney executed by OneWest and e videncing Ocwen's designation as loan servicer was admitted into evidence. Mr. D enson stated that OneWest was the prior servicer of the Cummings' loan and that t he servicing rights

were transferred to Ocwen thr ough Ocwen's acquisition of OneWes t. He explained in detail Ocwen's regular business pr actice when it acquires the s ervicing rights of a loan from a prior servicer and stated that the records received are reviewed for accuracy and relied upon in servicing the loan. As to the location or trans fer of the Cummings' original loan documents, Mr. Denson testified that the records indicated the original documents were received on May 15, 2010. The Cummings challenged the admissibility of the records relat ing to loan payment history and location of the original loan documents on hearsay grounds. However, the trial court admitted the documents into evidence a s OneWest's business records. The Cummings also objected to admission of the note a rguing the

endorsement on the note did not match the endorsements on the c opy of the note attached to the complaint. The court ruled the Cummings' argum ent went to the weight- 3 - of the evidence, not the admissibility, and admitted the note a nd mortgage into

evidence. At the conclusion of trial, the court ruled in favor of the C ummings, finding OneWest failed to prove standing . The court cited discrepancie s between the note introduced into evidence and the copy of the note attached to t he complaint, as well as concern over the validity of an assignment of mortgage from Mor tgage Electronic Registration Systems, Inc. ("MER S") to IndyMac. On appeal OneW est argues the trial court erred in finding the evidence insufficient to support its standing to foreclose. We

agree. "A plaintiff who is not the original lender may establish sta nding 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 p laintiff's status as the holder of the note." Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013) (footnote omitted). However, standing to foreclose must be established at the time the complaint is filed. Id.; Am. Home Mortg. Servicing, I nc. v. Bednarek, 132 So. 3d 1222, 1223 (Fla. 2d DCA 2014) (citing McLean v. JP Morgan Ch ase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012)). Here, the orig inal mortgage and note

with a blank endorsement and OneW est's business records indicat ing the payment history of the Cummings' loan were admitted into evidence. The se documents, together with Mr. Denson's testimony that OneWest was the holder of the note prior to filing the complaint, were sufficient to esta blish OneWest's standing to f oreclose. See Bednarek, 132 So. 3d at 1223; WAMCO XXVIII, Ltd. v. Integrated Elec. Env' ts., Inc., 903 So. 2d 230, 233 (Fla. 2d DCA 2005).- 4 - We reject the Cummings' argument that OneWest cannot prove it was in possession of the original note because the endorsement on the note in evidence did not match the endorsements on the copy of the note attached to the complaint. As argued by OneWest, the Cummings presented no testimony or evide nce to contradict Mr. Denson's testimony that the note in evidence was the origin al note acquired by OneWest in May 2010. Likewise, the Cummings' argument regardin g the validity of the assignment of mortgage from MERS to IndyMac is not relevant to OneWest's standing

to foreclose. Because the evi dence showed that OneWest possess ed the original note endorsed in blank at the time it filed the complaint, its stand ing is established from its status as the note holder regardless of any recorded assignment s. See Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013) (holding tha t "because a mortgage provides the security for the repayment of the note, t he person having standing to foreclose a note secured by a mortgage may be eithe r the holder of the note or a nonholder in possession of the note who has the rights of a holder") (quoting Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011)) ). Accordingly, we

reverse the dismissal of OneWest's foreclosure action and reman d for further proceedings.

Reversed and remanded.

ALTENBERND and LUCAS, JJ., Concur.