        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             TAMRA FIORITO,
                                Appellant,

                                      v.

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, as purchaser of
  the WASHINGTON MUTUAL BANK, f/k/a WASHINGTON MUTUAL
                       BANK, P.A.,
                        Appellee.

                              No. 4D13-2813

                             [August 26, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Janis Brustares Keyser, Judge; L.T. Case No.
502008CA033429.

   Jonathan H. Kline, Weston, for appellant.

    Susan Capote and Joseph D. Wargo of Wargo & French, LLP, Miami,
for appellee.

DAMOORGIAN, J.

    Appellant, Tamra Fiorito, appeals the trial court’s entry of a final
judgment of foreclosure in favor of JP Morgan Chase Bank, N.A. (“Chase”)
following a bench trial. We find merit in Appellant’s argument that Chase
failed to establish it had standing to foreclose when it filed its foreclosure
complaint. Therefore, we reverse the final judgment and remand for entry
of an order of involuntary dismissal. Because of our decision on the
standing issue, Appellant’s remaining issues are rendered moot.

   On October 28, 2008, Chase filed a two count complaint against
Appellant, alleging one count for mortgage foreclosure and one count for
reestablishment of a lost note. Chase alleged that it was the current owner
and holder of the promissory note and mortgage executed by Appellant in
June of 2006. A copy of the note and mortgage were attached to the
complaint, identifying Washington Mutual Bank, FA (“WAMU”) as the
original lender. The copy of the note attached to the complaint contained
no endorsements or allonges. Chase later voluntarily dismissed its
reestablishment of a lost note count and filed what it identified as the
original note and mortgage with the court. Unlike the note attached to the
complaint, the original note contained an undated, blank endorsement
from WAMU.

    At the bench trial, Chase presented a home loan research officer as its
only witness. The officer identified the original note, including the
undated, blank endorsement by WAMU. The officer, however, was unable
to testify as to when the endorsement was placed on the note, and further
acknowledged it was possible that the endorsement was placed on the note
after the filing of the complaint. At no point in time did the officer testify
that Chase was the owner and holder of the note prior to the filing of the
complaint. Both the note and mortgage were admitted into evidence
without objection.

   On appeal, Appellant argues that Chase’s filing of the original note
containing the undated, blank endorsement with the court, coupled with
the officer’s general testimony that Chase merged with WAMU in
September of 2008, was insufficient to establish that Chase was the owner
and holder of the note prior to the filing of the complaint. Chase counters
that there is competent, substantial evidence of its authority to enforce the
note based on the officer’s testimony that Chase acquired WAMU in
September of 2008, approximately one month prior to the filing of the
complaint.

   In McLean v. JP Morgan Chase Bank National Ass’n, we emphasized
that “[a] crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose” at the time it filed suit. 79 So. 3d 170, 173 (Fla. 4th DCA 2012);
see also Saver v. JP Morgan Chase Bank, 114 So. 3d 352, 353 (Fla. 4th
DCA 2013). As we outlined in Saver:

      A foreclosure plaintiff has standing so long as it was the holder
      of the mortgage at the time it filed suit. If the plaintiff's name
      is not on the mortgage, it can establish standing by proving
      that the mortgage was either assigned or equitably transferred
      prior to the date it filed the complaint. The following evidence
      is sufficient to establish standing in such a scenario:
      1) a special endorsement on the note in favor of the plaintiff
      or a blank endorsement, 2) evidence of an assignment from
      the payee to the plaintiff, or 3) an affidavit of ownership.

114 So. 3d at 353 (citations omitted).


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   When a mortgage foreclosure case proceeds to a bench trial, the
plaintiff bank need only present competent, substantial evidence that it
has standing to foreclose. See Stone v. BankUnited, 115 So. 3d 411, 413
(Fla. 2d DCA 2013). A bank employee’s trial testimony that the plaintiff
bank owned the note before the inception of the lawsuit is sufficient to
resolve the issue of standing. See id. (plaintiff bank provided competent,
substantial evidence that it owned and held the note prior to the filing of
the complaint based on its employee’s testimony that the bank acquired
ownership of the note and mortgage pursuant to a purchase assumption
agreement); see also Am. Home Mortg. Servicing, Inc. v. Bednarek, 132 So.
3d 1222, 1223 (Fla. 2d DCA 2014).

    As in the present case, “[w]here the plaintiff contends that its standing
to foreclose derives from an endorsement of the note, the plaintiff must
show that the endorsement occurred prior to the inception of the lawsuit.”
McLean, 79 So. 3d at 174. Chase failed to establish that the endorsement
was placed on the note prior to the filing of the complaint. While Chase
also could have established standing through its merger with WAMU, the
officer’s testimony fell short of establishing that Chase acquired all of
WAMU’s assets, including Appellant’s note and mortgage, by virtue of the
merger. The officer only testified that Chase merged with, and “took over,”
WAMU on September 25, 2008. The officer never testified that Chase
acquired all or any of WAMU’s assets, nor did he testify as to when Chase
became the owner of the note. Cf. Stone, 115 So. 3d at 413 (bank employee
specifically testified that the plaintiff bank acquired all of the prior bank’s
assets pursuant to a purchase assumption agreement). Thus, because
Chase failed to establish when it became the owner of the note, the trial
court erred in finding that Chase had standing to initiate the foreclosure
action.

   Accordingly, we reverse the final judgment and remand for entry of an
order of involuntary dismissal of the foreclosure action.

   Reversed and remanded.

GROSS, J. and HERSCH, RICHARD L., Associate Judge, concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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