DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CHARLES REYNOLDS,

Appellant,

v.

NATIONSTAR LOAN SERVICES, LLC,

Appellee.

No. 4D14-4045

[April 27, 2016]

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

Beach County; Roger B. Colton, Judge; L.T. Case No. 

2008CA028103XXXXMB.

Samuel D. Lopez of Samuel D. Lopez, P.A., Pembroke Pines, for 

appellant.

Nancy M. Wallace and Diane G. DeWolf of Akerman LLP, Tallahassee, 

and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee.

WARNER, J.

Charles Reynolds appeals a final judgment of foreclosure. He claims 

that the appellee, Aurora Loan Services, LLC, failed to prove its standing 

at the time the foreclosure complaint was filed. We agree that Aurora did 

not prove standing because it did not prove that it was the holder of the 

promissory note at the time of the filing of the suit. We thus reverse.

Reynolds executed a note and mortgage to Lehman Brothers Bank FSB, 

on which he later defaulted. Aurora, the loan servicer, brought a 

foreclosure action against Reynolds. Aurora alleged it was the owner and 

holder of the note. A copy of the note without any endorsements was 

attached to the complaint. Over a year later, Aurora filed the original note 

with the court. It had two endorsements on it. The first was an undated 

endorsement from Lehman Brothers Bank to Lehman Brothers Holdings. 

The second was an endorsement in blank from Lehman Brothers Holdings. 

Reynolds answered and asserted Aurora’s lack of standing as an 

affirmative defense. After the complaint was filed but before final 
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judgment, Aurora was purchased by Nationstar Mortgage, LLC, and 

Nationstar was substituted as party plaintiff.

At the trial, an employee of Nationstar testified as to all of the relevant 

documents and the default. With respect to the note, the witness testified 

that there were two endorsements, one from Lehman Brothers Holdings, 

and one from Lehman Brothers Bank to Lehman Brothers Holdings, which 

he said was the same as Aurora. Reynolds objected to the witness’s 

testimony that Lehman Brothers Holdings was “the same as Aurora,” and 

the court sustained the objection. The witness then testified that the note 

was in Aurora’s possession at the time the complaint was filed. He did not 

testify as to when the endorsements were placed on the note. Based upon 

this testimony regarding the note, as well as other testimony about other 

elements of the claim, the court denied Reynolds’s motion for involuntary 

dismissal and entered a final judgment of foreclosure for Nationstar.

A determination that a party has standing to bring an action is a 

question of law which is subject to de novo review. Westport Recovery 

Corp. v. Midas, 954 So. 2d 750, 752 (Fla. 4th DCA 2007). Whether a party 

is the proper party with standing to bring an action is a question of law to 

be reviewed de novo. Elston/Leetsdale, LLC v. CWCapital Asset Mgmt., 

LLC, 87 So. 3d 14, 16 (Fla. 4th DCA 2012).

A party’s standing is determined at the time the lawsuit is filed. McLean 

v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 

2012). “[S]tanding may be established from a plaintiff’s status as the note 

holder, regardless of any recorded assignments. 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.” Id. (citation omitted).

Reynolds claims that Nationstar did not prove Aurora’s standing at the 

time the complaint was filed. Nationstar’s witness testified over objection 

that Aurora had possession of the note prior to filing the lawsuit, but there 

was no competent explanation of how or when the transfers from Lehman 

Brothers Holdings occurred or whether they occurred prior to the suit 

being filed. There was no evidence as to when the endorsements on the 

note were made—they were not on the copy attached to the complaint and 

only appeared over a year later when the original was filed. To make up 

for this deficiency, the witness tried to testify that Aurora and Lehman 

Brothers Holding were one and the same, but the court sustained the 

objection to this testimony. Without that evidence, there was no testimony 

to show that Aurora was a holder of the note at the time of the filing of the 

complaint.
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In its brief, Nationstar states in a footnote that “it is well known, 

particularly among judges who preside over hundreds of foreclosure 

actions, that Aurora is the servicing arm of Lehman Brothers.” This 

information might qualify for judicial notice either as “[f]acts that are not 

subject to dispute because they are generally known within the territorial 

jurisdiction of the court” or “[f]acts that are not subject to dispute because 

they are capable of accurate and ready determination by resort to sources 

whose accuracy cannot be questioned.” § 90.202(11), (12), Fla. Stat. 

(2013). However, we cannot take judicial notice of this “fact,” nor can the 

trial court without a timely and otherwise sufficient request under section 

90.203, Florida Statutes (2013). Here, however, when Reynolds objected, 

Nationstar did not attempt to otherwise prove the connection between 

Lehman Brothers and Aurora. Without evidence of such, Nationstar was 

unable prove that Aurora held the note at the time it filed suit.

We thus reverse for entry of a judgment of dismissal of the complaint 

for foreclosure.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.