IN THE DISTRICT COURT OF APPEAL 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 

Appeal 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 

Appellants. 

Nancy M. Wallace and Kristen M. Fiore, of 

Akerman LLP, Tallahassee, and William P. 

Heller, of Akerman LLP, Fort Lauderdale, 

for Appellees. 

PALMER, J. 

 Otto and Brigitte Devries, the homeowners, timely appeal the final judgment of 

foreclosure entered by the trial court in favor of CitiMortgage. Determining that 

CitiMortgage failed to prove its standing to foreclose, we reverse. 
2

 The proper party entitled to enforce a note and foreclose a mortgage is the 

holder of the note, a nonholder in possession who has the rights 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 complaint contained a special 

indorsement in favor of Standard Federal Bank. At trial, CitiMortgage introduced the 

original note into evidence which contained an additional indorsement: a special 

indorsement in its favor. CitiMortgage also introduced a backdated assignment of the 

note and mortgage. CitiMortgage’s witness testified that the bank'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 was filed. We agree 

 First, CitiMortgage presented no evidence that the special indorsement in its 

favor predated the filing of the complaint. See Eagles Master Ass'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 assignment 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 establish standing on basis of 

backdated assignment where the bank’s witness did not testify that 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, standing alone, [does not] 

establish standing.”). 

 While CitiMortgage contends that the date the assignment was executed was not 

determinative because it was simply memorializing an earlier transfer, CitiMortgage 

presented no evidence in support of this contention, such as evidence that the note and 

mortgage were delivered to CitiMortgage in 2007 with the intention of passing title. See 

generally Jarvis v. Deutsche Bank Nat'l Trust Co., 169 So. 3d 194, 196 (Fla. 4th DCA 

2015) (stating that possession of instrument alone is an insufficient 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.