DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

HENRI C. LAFRANCE 

and MARIE LAFRANCE,

Appellants,

v.

US BANK NATIONAL ASSOCIATION, as trustee for CSFB Home Equity 

Pass-Through Certificates Series 2006-08,

Appellee.

No. 4D13-102

[July 9, 2014]

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

Beach County; Roger B. Colton, Senior Judge, Judge; L.T. Case No. 50-

2009-CA012110AW.

S. Tracy Long of the Law Offices of S. Tracy Long, P.A., Boca Raton, for 

appellants.

Jessica Zagier Wallace of Carlton Fields, P.A., Miami, and Michael K. 

Winston, Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for 

appellee.

PER CURIAM.

Appellants appeal a final summary judgment of mortgage foreclosure 

in favor of appellee. Because appellee failed to rebut appellants’ affirmative 

defense of lack of standing, we reverse. 

Henri C. LaFrance and Marie LaFrance (“appellants”) executed a 

promissory note and mortgage on the subject property with lender 

Accredited Home Lenders, Inc. (“AHL”) in 2006. In 2009, US Bank 

National Association, as Trustee for CSFB Home Equity Pass-Through 

Certificates Series 2006-8 (“US Bank”), filed a mortgage foreclosure 

complaint against appellants as “the holder” of the note and mortgage. A

copy of the unendorsed note was attached to the complaint. Appellants 

filed an answer with affirmative defenses, including that US Bank lacked 

standing. 
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US Bank moved for summary judgment. In support thereof, it filed 

affidavits of representatives and records from two loan servicing providers. 

Over three-and-a-half years after filing its complaint, US Bank also filed 

the original note with an allonge bearing an undated endorsement in blank 

signed by an “Assistant Secretary” of AHL, the original lender. The trial 

court granted final summary judgment in favor of US Bank. 

“The standard of review of an order granting summary judgment is de 

novo.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 172

(Fla. 4th DCA 2012). Summary judgment is appropriate where there is no 

genuine issue as to any material fact and the moving party is entitled to 

judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

Appellants assert that the trial court erred in entering summary 

judgment because there was a genuine issue of material fact as to whether 

US Bank had standing to file their complaint. US Bank responds that the 

“authenticated” business records of the servicing providers demonstrate 

that it had standing. 

“A crucial element in any mortgage foreclosure proceeding is that the 

party seeking foreclosure must demonstrate that it has standing to 

foreclose.” McLean, 79 So. 3d at 173. “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) (citation omitted). Standing to foreclose is 

determined at the time the lawsuit is filed and can be demonstrated by the 

filing of an assignment or the original note with a special endorsement in 

favor of the plaintiff or a blank endorsement. McLean, 79 So. 3d at 173. 

A “plaintiff’s lack of standing at the inception of the case is not a defect 

that may be cured by the acquisition of standing after the case is filed” 

and cannot be established “retroactively by acquiring standing to file a 

lawsuit after the fact.” Id. (citation omitted). 

Here, over three-and-a-half years after filing its complaint with a 

photocopy of the unendorsed note, US Bank filed the original note 

containing an undated endorsement in blank. The undated endorsement

fails to prove that US Bank was the owner or holder of the note at the time 

of filing the complaint. Further, none of the affidavits filed in support of 

summary judgment specifically assert that US Bank obtained possession 

of the endorsed note prior to the date of the filing the complaint. Finally, 

the loan servicing records provided by the affiants, without any 

explanation of their significance, likewise failed to affirmatively prove that
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US Bank was the owner and holder of the note prior to the filing of the 

complaint. 

Because the affidavits and records filed in support of summary 

judgment do not support a finding that US Bank was the holder of the note 

with a proper endorsement in blank at the time the complaint was filed, a 

genuine issue of material fact exists as to whether US Bank had standing 

at the time of suit. On the record presented, it is possible that US Bank 

did not obtain standing to foreclose until after it initiated the lawsuit. 

Thus, the trial court erred in entering the final summary judgment of 

foreclosure in favor of US Bank. McLean, 79 So. 3d at 173; see also 

Zimmerman v. JPMorgan Chase Bank, Nat’l Assoc., 134 So. 3d 501, 502

(Fla. 4th DCA 2014); Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 

251, 254 (Fla. 2d DCA 2012). We therefore reverse the final judgment and 

remand for further proceedings. 

Reversed and remanded. 

LEVINE, CONNER and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.