### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

VICTORIA S. MAGALDI
, Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee For

WAMU 2005

- AR6
, Appellee

.

No. 4D 15

- 1043

[ June 15, 2016 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Roger B. Colton, Senior Judge ; L.T. Case No.

502009CA015214XXXXMB

.

Victoria S. Magaldi, Jupiter, pro se.

Philip E. Rothschild and Brian K. Hole of Holland & Knight LLP, Fort Lauderdale, for appellee.

C IKLIN
, C.J

.

Victoria Magaldi appeals the final judgment of foreclosure entered in favor of Deutsche Bank National Trust Company as T rustee for WAMU

2005

- AR6 (“the b ank”). We agree with Magaldi that the b ank failed to

prove it had standing at the inception of the underlying suit and thus we

reverse.

In 2004, Magaldi executed a promissory note in favor of Wa shington Mutual Bank, FA (“the lender”). In 2009, the b ank brought a foreclos ure suit against Magaldi. The b ank alleged it was the “owner” of the note. It attached to its complaint a copy o f the note made payable to the l ender.

The note did not contain a ny endorsements. In 2014, the b ank filed t he original note with the court which contained an un dated blank endorsement by the l ender.

At trial, the following exhibits were introduced into evidence: copies of the original note and mortgage, a pooling and servicing agreement (“the PSA”), and a post

- complaint assignment of the mortgage and note2 by JP Morgan Chase Bank to the b ank. The b an k’s witness, Linda Kuerzi, was employed by the entity that services the loan for the b ank.

She provided testimony about the note, assignment, and the PSA.

This court has explained the process by which standing in a foreclosure case may be established:

A “person entitled to enforce” an instrument is: “(1) [t]he holder of the instrument; (2) [a] nonholder in possession of the instrument who has the rights of a holder; or (3) [a] person not in possession of the instrument who is entitled to

enforce the instrument pursuant to s[ection] 673.3091 or s[ection] 673.4181(4).” § 673.3011, Fla. Stat. (2013). A “holder” is defined as “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the pe rson in possession.” § 671.201(21)(a), Fla. Stat. (2013). Thus, to be a holder, the instrument must be payable to the person in possession or

indorsed in blank. See § 671.201(5), Fla. Stat. (2013).

Murray v. HSBC Bank USA , 157 So. 3d 355, 358 (Fla. 4th DCA 2015 ) (alterations in original).

At trial, the b ank appeared to proceed as a holder. 1 However, none of the evidence introduced at trial established its standing at the inception of the suit. The copy of the note attached to the complaint did not

e stablish standing, as it was not made payable t o the b ank and did not

contai n a special endorsement in the b ank’s favor or a blank endorsement. Although the original note contains an endorsement in blank, it was filed after suit was brought and thus did n ot establish standing at inception of the suit. See McL ean v. JP Morgan Chase Bank

Nat’l Ass’n , 79 So. 3d 170, 173 (Fla. 4th DCA 2012).

The b ank relies to some extent on the assignment, but the assignment

was dated 2010

— after suit was filed

— and does not offer any indication

of whether the b ank held the note endorsed in its favor or in blank when

it commenced the subject litigation . To the extent the b ank proved, through the PSA and Kuerzi’s testimony, that the loan was transferred to the trust in 2005, this does not prove that at the time of the transfer, the

note contained an endor sement in the b ank’s favor or in blank. Evidence of a transfer of the note into a trust is not, standing alone, sufficient to

1 This is confirmed in the b ank’s answer brief, in which it explains how it proved standing as the holder of the note.3 establish standing at inception of the suit. Se e Perez v. Deutsche Bank

Nat’l Trust Co. , 174 So. 3d 489, 491 (Fla. 4th DCA 2015); Jarvis v.

Deutsche Bank Nat’l Trust. Co. , 169 So. 3d 194, 196 (Fla. 4th DCA 2015).

Because the b ank did not prove it had standing at inception of the law suit, we revers e. The remaining issue raised on appeal is moot.

Reversed.

T

AYLOR and M AY
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.