       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 6, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                          Nos. 3D15-593 & 3D15-305
                         Lower Tribunal No. 07-1631-K
                              ________________


                          Wells Fargo Bank, N.A.,
                                    Appellant,

                                        vs.

                             Scott Russell, et al.,
                                    Appellees.


     Appeals from the Circuit Court for Monroe County, James M. Barton, II and
Donald C. Evans, Senior Judges.

      Carlton Fields Jorden Burt and Michael K. Winston and Dean A. Morande
(West Palm Beach), for appellant.

     Smith | Oropeza | Hawks and Christopher B. Deem and Barton W. Smith
(Key West), for appellees.


Before SALTER, FERNANDEZ and SCALES, JJ.

      SALTER, J.
      Wells Fargo Bank, N.A., appeals a final summary judgment in favor of the

mortgagors/appellees, Scott and Marilyn Russell, and an order awarding the

Russells their attorney’s fees incurred in the underlying residential foreclosure

action. We reverse as to each of these rulings, and we remand the case for further

proceedings.

      I.       Facts and Procedural Background

      In this otherwise-routine foreclosure, post-filing transactions involving a

mortgage left a trail difficult for the special magistrate and trial judge to interpret.

In the original 2007 complaint, Wells Fargo alleged that it was the servicer for the

owner and had authority as the designated holder of the note and mortgage to

pursue enforcement. A copy of the note, with an undated endorsement in blank by

the original lender (Gateway Funding) was attached to the complaint, but Wells

Fargo alleged in a separate count that it “was in possession of the Mortgage Note

and entitled to enforce it when loss of possession occurred or [Wells Fargo] has

been assigned the right to enforce the Mortgage Note. (See the attached true copy

of the Note.)”

      Thereafter, a default was entered against the Russells, and Wells Fargo

voluntarily dismissed the count seeking “re-establishment of lost note.” Wells

Fargo filed the original note bearing the endorsement in blank and moved for final

summary judgment. Before a judgment of foreclosure was entered, however, an



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attorney for the Russells entered an appearance in the case and filed an opposition

to the motion for summary judgment raising (among other alleged issues) Wells

Fargo’s lack of standing. In June 2011, the trial court denied Wells Fargo’s motion

for summary judgment based on an error in the legal description and in order to

allow the parties to mediate.

         When Wells Fargo sought to proceed on an amended complaint, the Russells

opposed amendment and moved to dismiss the case with prejudice. In 2013, that

motion was denied and Wells Fargo was permitted to amend its complaint. The

Russells answered and filed affirmative defenses, including an allegation that

Wells Fargo lacked standing at the inception of the case because “[t]he Assignment

of Mortgage attached to [Wells Fargo’s Amended] Complaint shows an execution

date occurring almost four years after the Complaint was filed.” The Russells then

moved for summary final judgment in their favor based on (a) Wells Fargo’s

failure to provide the Russells thirty days within which to cure any default before

commencing the foreclosure action, and (b) the alleged lack of standing at

inception of the lawsuit.1

         Approximately two weeks before the scheduled trial in the case, the assigned

special magistrate heard the Russells’ motion for summary judgment and

recommended that it be granted. The trial court agreed. This appeal followed.

1   The Russells raised other issues that are not pertinent to this appeal.


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      II.    Analysis2

      The final summary judgment was granted based on an affirmative defense

that Wells Fargo lacked standing to enforce the note and mortgage when it filed the

complaint and amended complaint. The final summary judgment cited Focht v.

Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013), a case in which a

final summary judgment in favor of the lender was reversed “because a genuine

issue of material fact exists regarding Wells Fargo’s standing to enforce the note

and mortgage.” Id. at 309. In Focht, the Second District did not determine that

issue of fact, and instead remanded the case for further proceedings.

      In the present case, the Russells have not established that Wells Fargo lacked

standing at the inception of the lawsuit, that Wells Fargo did not possess the

promissory note when it commenced the lawsuit, or that the Russells are entitled to

summary judgment. The 2011 assignment of mortgage upon which the Russells

rely does not demonstrate that Wells Fargo was not the owner and holder of the

promissory note secured by the mortgage when the complaint was filed, or that

Wells Fargo was not a servicer or other agent authorized to enforce the note and

mortgage.    The Russells apparently assume 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

2 Our standard of review in an appeal from a final summary judgment is
sufficiently well-publicized that we decline to add the usual paragraph.

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exhibits relied upon by the Russells themselves concede the contrary, and the

original promissory note endorsed by the original noteholder was filed well before

the assignment of mortgage.3 “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.” Id. at 310 n.1 (citing Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d 224,

225 (Fla. 2d DCA 2012)).

       The special magistrate and trial judge apparently concluded that the more

complicated provenance of the mortgage—from Gateway Funding, with Mortgage

Electronic Registration Systems, Inc. (MERS), as a nominee for Gateway and its

successors (when the loan was closed in 2003), to Wells Fargo (in October

2011)—should control the standing analysis. It does not. Wells Fargo’s obligation

to demonstrate standing, whether in its own motion for summary judgment or at

trial on remand, is to prove the allegations in its complaint: it is the holder of the

note and is entitled to enforce the security instrument which secures repayment of

that note. Hepworth v. Wells Fargo Bank, N.A., 180 So. 3d 1170, 1173 (Fla. 4th

DCA 2015) (“[S]tanding may be established from the plaintiff’s status as the note

holder, regardless of any recorded assignments. If the note does not name the


3 The assignment of mortgage was dated and notarized October 3, 2011. A copy of
the original note, endorsed in blank by the original lender, was attached to the
original complaint filed December 6, 2007. The original note, bearing the same
endorsement in blank, was filed with the trial court on August 17, 2010, over a
year before the assignment.

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plaintiff as the payee, the note must bear a special endorsement in favor of the

plaintiff or a blank endorsement.” (alteration in original) (quoting McLean v. JP

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

      On the face of the summary judgment evidence in this case, Wells Fargo

possessed the original note, endorsed in blank, in 2007 as the case was filed.4 The

Russells were not entitled to a summary judgment on their affirmative defense

alleging lack of standing.

      III.   Conclusion

      The final summary judgment is reversed and remanded to the trial court for

further proceedings consistent with this opinion. It follows that the order awarding

attorney’s fees to the Russells as prevailing parties must also be vacated, without

prejudice to the right of the ultimately-prevailing party or parties to seek attorney’s

fees following remand.

      Final summary judgment reversed and remanded; order awarding attorney’s

fees vacated.




4 The Legislature has codified 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.

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