IN THE DISTRICT COURT OF APP EAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

OTTO P. DEVRIES AND BRIGITTE YOUNG DEVRIES,

Appellants,

v. Case No. 5D14-1887 CITIMORTGAGE INC, ET AL., Appellees. ________________________________/ Opinion filed March 24, 2016

A ppeal from the Circuit Court for Orange County, Lawrence Kirkwood, Senior Judge. Peter Ticktin, Kendrick Almaguer and Michael S. Wickenhauser, of The Ticktin Law Group, P.A., Deerfield Beach, for A ppellants. Nancy M. Wallace and Kristen M. Fiore, of A kerman LLP, Tallahassee, and William P. Heller, of Akerman LLP, Fort Lauderdale, for Appellees.

PALMER, J. Otto and Brigitte Devries, the homeowners, timely appeal the f inal judgment of foreclosure entered by the trial court in favor of CitiMortgage . Determining that CitiMortgage failed to prove its standing to foreclose, we reve rse.2 The proper party entitled to enforce a note and foreclose a mo rtgage is the holder of the note, a nonholder in possession who has the right s of a holder, or a person not in possession of a lost instrument who has the right to re- establish the note pursuant to section 673.3091, Florida Statutes (2009). Gorel v. Bank of New York Mellon, 165 So. 3d 44, 46 (Fla. 5th DCA 2015). CitiMortgage filed this foreclosure suit in 2010, alleging its standing based on its status as holder of the note, yet the note attached to the comp laint contained a special indorsement in favor of Standard Federal Bank. At trial, CitiMo rtgage introduced the original note into evidence which contained an additional indor sement: a special indorsement in its favor. CitiMortgage also introduced a backda ted assignment of the note and mortgage. CitiMortgage’s witness testified that the ba nk's records showed that the original note was received by transfer in 2007. The witness did not testify that the indorsements or assignment predated the filing of the complaint . The homeowners argue that the evidence at trial was insufficient to establish that CitiMortgage had standing to foreclose the mortgage at the time the complaint wa s filed. We agree First, CitiMortgage presented no evidence that the special ind orsement in its favor predated the filing of the complaint. See Eagles Master A ss'n, Inc. v. Bank of Am., N.A., 40 Fla. L. Weekly D1510 (Fla. 2d DCA June 26, 2015) (“The endorsement must have occurred before the filing of the complaint because it is axiomatic that standing must be shown as of the filing of the complaint.”). Second, CitiMortgage’s witness did not testify that the assign ment occurred before the complaint was filed. See Lloyd v. Bank of New York Mellon, 160 So. 3d 513,3 515 (Fla. 4th DCA 2015) (holding that the bank did not establis h standing on basis of backdated assignment where the bank’s witness did not testify t hat assignment predated filing of complaint); see also Matthews v. Fed. Nat'l Mortg. Ass'n, 160 So. 3d 131, 133 (Fla. 4th DCA 2015) (“[A] backdated assignment, standi ng alone, [does not] establish standing.”). While CitiMortgage contends that the date the assignment was e xecuted was not determinative because it was simply memorializing an earlier tr ansfer, CitiMortgage presented no evidence in support of this contention, such as ev idence that the note and mortgage were delivered to CitiMortgage in 2007 with the intent ion of passing title. See generally Jarvis v. Deutsche Bank Nat'l Trust Co., 169 So. 3d 1 94, 196 (Fla. 4th DCA 2015) (stating that possession of instrument alone is an insuff icient basis to prove standing to foreclose); St. Clair v. U.S. Bank Nat'l Ass'n, 173 So. 3d 1045, 1046 (Fla. 4th DCA 2015) (same).

REVERSED and REMANDED for entry of an involuntary dismissal.

SAWAYA and TORPY, JJ., concur.