Foreclosure Plaintiff Must Have Standing to Enforce the Note, as Opposed to the Mortgage, at the Inception of Proceeding

In Wells Fargo Bank, N.A. v. Russell, 3D15-593 & 3D15-305 (Fla. 3rd DCA July 6, 2016), the Third District Court of Appeal reversed the trial court’s final summary judgment in favor of the mortgagors/appellees.  The final summary judgment had been granted based on an affirmative defense that Wells Fargo lacked standing to enforce the note and mortgage when it filed the initial complaint.

In Russell, a copy of the note, with an undated endorsement in blank by the original lender, was attached to the complaint.  The trial court found that Wells Fargo lacked standing when it filed suit, however, because an amended complaint showed an assignment of the mortgage to Wells Fargo almost four years after the complaint was filed.

According to the Third District, the mortgagors/appellees “apparently assume[d] that the recordation of the assignment of mortgage to Wells Fargo in 2011 must mean that the note was held by the assignor (rather than by Wells Fargo) prior to that time, but the pleadings and exhibits relied upon by the [mortgagors/appellees] themselves concede the contrary, and the original promissory note endorsed by the original noteholder was filed well before the assignment of mortgage.”  The Third District noted that case law focuses on standing to enforce the note, as opposed to the mortgage, because “the mortgage generally passes as an incident to the debt.”

The Third District referred in a footnote to the Legislature’s codification of the requirements for establishing possession of the promissory note in residential foreclosure cases.  See § 702.015, Fla. Stat. (2013).  The statute applies to cases filed on or after July 1, 2013.  In 2014, the Florida Supreme Court adopted rule 1.115 of the Florida Rules of Civil Procedure to give effect to section 702.015.

Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as a freelance business litigator for those wishing to expand the bench strength of their practices without expanding their overhead. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  For more information, call Donna at (561) 910-0054, email, or visit

Foreclosure Plaintiff Must Have Standing to Enforce the Note, as Opposed to the Mortgage, at the Inception of Proceeding

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