       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

ABDEL (DARWISH) DARWICHE and BATOUL (DARWISH) DARWICHE,
                       Appellants,

                                    v.

THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK,
AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS 2003-60,
                        Appellee.

                             No. 4D13-4395

                           [February 24, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE09041676.

  Vanessa Jaleh Bravo of Neustein Law Group, P.A., Aventura, for
appellants.

   Tahirah R. Payne and Kristen M. Gottfried of Morris Schneider
Wittstadt, LLC, Tampa, for appellee.

CONNER, J.

   Abdel and Batoul Darwiche appeal the trial court’s entry of a final
summary judgment of foreclosure in favor of Appellee, Bank of New York
Mellon, and the denial of their motion for rehearing and relief from
judgment. Although Appellants raise several issues on appeal, we find
merit in only one of their arguments. Appellants argue that the trial court
erred in entering final summary judgment in favor of the bank where
genuine issues of material fact remained regarding the bank’s standing.
We agree, and reverse and remand for further proceedings.

             Factual Background and Trial Court Proceedings

   The bank initiated this mortgage foreclosure action against Appellants
on July 28, 2009. The copy of the note attached to the complaint states
that the original lender was America’s Wholesale Lender and did not
contain any indorsements. In its complaint, the bank alleged that the
mortgage was transferred to it by virtue of “an assignment to be recorded”
and that it “owns and holds the Note and Mortgage.”1 The mortgage also
stated that “‘MERS’ is Mortgage Electronic Registration Systems, Inc.
MERS . . . is acting solely as a nominee for Lender and Lender’s successors
and assigns.”

   After Appellants filed a motion to dismiss challenging the bank’s
standing, the bank filed a copy of the note reflecting an undated blank
indorsement signed by Countrywide Home Loans, Inc., doing business
under the fictitious name of America’s Wholesale Lender, the original
lender. The bank also maintained in its response to Appellants’ motion
that it was in possession of the original note and mortgage and that it came
into ownership of the same through a valid assignment of mortgage.
Appellants’ motion was denied, and Appellants filed their answer to the
complaint, in which they maintained their challenge to the bank’s
standing.

    Thereafter, the bank filed its motion for summary judgment of
foreclosure. In support of its motion, the bank filed an affidavit attesting
that it “has possession of the promissory note,” and that it is “the assignee
of the security instrument for the referenced loan.” The bank also filed the
original note and mortgage, along with a copy of the recorded assignment
of mortgage. The original note contained the undated blank indorsement
by the original lender. The assignment of mortgage, notarized August 5,
2009 (after suit was filed), reflected a transfer of the note and mortgage
from MERS to the bank, effective June 22, 2009 (before suit was filed).
Although a hearing was held on the bank’s motion for summary judgment,
it appears Appellants failed to attend, and a transcript of the hearing has
not been included in the record on appeal. After the hearing, the trial
court entered a final summary judgment in favor of the bank. Appellants
gave notice of appeal after the trial court denied their motion for rehearing
and relief from judgment.

                             Appellate Analysis

   Appellants argue that the trial court erred in entering final summary
judgment in favor of the bank where genuine issues of material fact
remained regarding the bank’s standing.

   The granting of a motion for summary judgment is reviewed de novo.
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000). “When reviewing a ruling on summary judgment, an appellate

1The copy of the assignment of mortgage filed in the court file states the note
was assigned and transferred as well.

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court must examine the record in the light most favorable to the non-
moving party.” Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA
2009) (citing Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So. 3d
1211, 1213 (Fla. 4th DCA 2009)). Summary judgment is appropriate only
where “there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c).
The burden is on the moving party to show “conclusively the absence of
any genuine issue of material fact and the court must draw every possible
inference in favor of the party against whom a summary judgment is
sought.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). “If the evidence
raises any issue of material fact, if it is conflicting, if it will permit different
reasonable inferences, or if it tends to prove the issues, it should be
submitted to the jury as a question of fact to be determined by it.” Id. “If
the ‘slightest doubt’ exists, then summary judgment must be reversed.”
Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).

   It is well settled that standing of the plaintiff to foreclose on a mortgage
must be established at the time the plaintiff files suit. See McLean v. JP
Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012);
Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012).
Here, Appellants assert that the bank failed to establish that it possessed
the blank-indorsed note at the inception of the suit. While the original
note contained an undated blank indorsement, and while the bank
ultimately filed the original note with the trial court, reflecting possession
of the note at the time the original was filed, there was nevertheless
insufficient evidence to establish that the bank held the blank-indorsed
note, and was thus entitled to enforce it, at the time suit was filed.

   The affidavits in support of the bank’s motion for summary judgment
did not specifically state when the bank came into possession of the note,
nor did the bank otherwise indicate that it owned or possessed the note at
the time suit was filed. Though the bank filed the original note and
mortgage prior to the summary judgment hearing, its bare assertion in its
supporting affidavit that it “has possession of the promissory note” fails to
clarify at what point the bank obtained possession of the blank-indorsed
note, and is therefore insufficient evidence of whether the bank possessed
the note from the inception of the suit. See Cromarty v. Wells Fargo Bank,
NA, 110 So. 3d 988, 989 (Fla. 4th DCA 2013) (“While the note introduced
had a blank [i]ndorsement and was sufficient to prove ownership by
appellee, who possessed the note, nothing in the record shows that the
note was acquired prior to the filing of the complaint. The [i]ndorsement
did not contain a date, nor did the affidavit filed in support of the motion
for summary judgment contain any sworn statement that the note was
owned by the plaintiff on the date that the complaint was filed.” (emphasis

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added and internal quotation marks omitted) (quoting Hall v. REO Asset
Acquisitions, LLC, 84 So. 3d 388 (Fla. 4th DCA 2012))).

    As to the assignment of mortgage, upon which the bank relied to
establish its standing, we agree with Appellants that genuine issues of
material fact remained as to whether the assignment of mortgage was
sufficient to establish the bank’s standing at the inception of the suit. The
complaint was filed on July 28, 2009.            Although the assignment
transferring the note and mortgage to the bank states an “effective date”
of June 22, 2009, the assignment appears to have been notarized and
executed on August 5, 2009, which was clearly after the complaint was
filed. We have held that “two inferences can be drawn from the ‘effective
date’ language.” Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277
(Fla. 4th DCA 2013). One inference is that ownership of the note and
mortgage was equitably transferred to the bank on June 22, 2009 (prior
to suit), but another inference is that the parties to the transfer were
attempting to backdate an event to their benefit. Id. We have previously
warned that “[a]llowing assignments to be retroactively effective would be
inimical to the requirements of pre-suit ownership for standing in
foreclosure cases.” Id. at 1277 n.1. “Because the language yields two
possible inferences, proof is needed as to the meaning of the language, and
a disputed fact exists.” Id. at 1277.

    Accordingly, we hold that the trial court erred in entering summary
judgment in favor of the bank, where the record does not reflect as a matter
of law that the bank had standing on the date the complaint was filed. We
therefore reverse the entry of summary judgment and remand for further
proceedings consistent with this opinion.

   Reversed and remanded.

CIKLIN, C.J., and BOORAS, TED, Associate Judge, concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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