DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

VICTORIA S. MAGALDI,

Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee For

WAMU 2005-AR6,

Appellee.

No. 4D15-1043

[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.

CIKLIN, C.J.

Victoria Magaldi appeals the final judgment of foreclosure entered in 

favor of Deutsche Bank National Trust Company as Trustee for WAMU 

2005-AR6 (“the bank”). We agree with Magaldi that the bank 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 Washington 

Mutual Bank, FA (“the lender”). In 2009, the bank brought a foreclosure 

suit against Magaldi. The bank alleged it was the “owner” of the note. It 

attached to its complaint a copy of the note made payable to the lender. 

The note did not contain any endorsements. In 2014, the bank filed the 

original note with the court which contained an undated blank 

endorsement by the lender.

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 note 
2

by JP Morgan Chase Bank to the bank. The bank’s witness, Linda 

Kuerzi, was employed by the entity that services the loan for the bank. 

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 person 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 bank 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 

establish standing, as it was not made payable to the bank and did not 

contain a special endorsement in the bank’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 not establish 

standing at inception of the suit. See McLean v. JP Morgan Chase Bank 

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

The bank 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 bank held the note endorsed in its favor or in blank when 

it commenced the subject litigation. To the extent the bank 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 endorsement in the bank’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 bank’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. See 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 bank did not prove it had standing at inception of the law

suit, we reverse. The remaining issue raised on appeal is moot.

Reversed.

TAYLOR and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.