DO BANK’S HAVE STANDING TO BRING SUIT WHEN THEY HAVE LOST THE NOTE OR WERE NEVER IN POSSESSION OF IT TO BEGIN WITH?
The recent ruling under Creadon v. U.S. Bank N.A. 166 So.3d 952 (Fla. 2nd DCA 2015), says NO. This case involved BancMortgage Financial Corporation, the lender who foreclosed against two homeowners under the theory of a lost note. The lender never held the note but tried to produce evidence at trial, through one of the bank employees, and through a limited power of attorney, that the bank held the note by virtue of an executed assignment.
While no one disputed that the homeowners were in default, the issue was whether there was enough evidence to warrant substitution as Plaintiff and prove that U.S. Bank had standing to enforce the note. It proceeded solely on the theory that it was the “holder” of the note and therefore had the right to foreclose.
In this case, however, a foreclosure had been filed previously. Under that previous filing, the original note had been filed in the registry of the court years before. Without the return to U.S. Bank of the original note, it could not have been holding the note or been what is referred to as “nonholder in possession” with standing to foreclose.
The court held that U.S. Bank failed to present sufficient evidence that it had standing to foreclose the note. Unable to prove their right to sue, the court ruled in the homeowners favor.
If you need assistance with a foreclosure, contact us. At the Law Offices of Jacqueline A. Salcines, PA, we are here to help you with your foreclosure so you don’t lose your property.