        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                              JEAN W. CHERY,
                                 Appellant,

                                        v.

                         BANK OF AMERICA, N.A.,
                                Appellee.

                                No. 4D14-3446

                              [January 27, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen D. Ireland, Senior Judge; L.T. Case No. 09-
015175 (11).

  James Jean-Francois of James Jean-Francois, P.A., Hollywood, for
appellant.

    H. Michael Muñiz of Kahane & Associates, P.A., Plantation, for appellee.

CONNER, J.

   The Homeowner appeals the final judgment of foreclosure, arguing that
Bank of America, N.A. (“BANA”) failed to prove standing. In common with
many foreclosure appeals, the issue of standing in this case focuses on
undated indorsements on the note. Because BANA failed to prove that the
original plaintiff had standing at the time suit was filed, we reverse.

              Factual Background and Trial Court Proceedings

   Countrywide Home Loans Servicing, L.P. (“Countrywide HLS”) filed a
two-count complaint against the Homeowner, seeking a mortgage
foreclosure and enforcement of a lost note.1 Attached to the complaint was
a copy of a mortgage signed by the Homeowner, with Great Country
Mortgage Bankers, Corp. (“Great Country”) listed as the original lender. A
copy of the note was not attached to the complaint. The complaint alleged
that Countrywide HLS “owns and holds the Note and Mortgage.”

1The lost note count was dropped after a copy of the note was filed with the trial
court.
    The Homeowner raised the plaintiff’s standing to file suit in both her
initial and amended affirmative defenses.

   The trial court granted a motion by Countrywide HLS to substitute BAC
Home Loans Servicing (“BAC”), formerly known as Countrywide HLS, as
the plaintiff. In the motion for substitution of plaintiff, Countrywide HLS
explained that the basis for the substitution was that “[s]ubsequent to the
commencement of this action, Plaintiff filed a name change to [BAC] with
the State of Texas.”

   BAC filed a copy of the note, which contained four undated
indorsements:

      1. from Great Country to Countrywide Bank, FSB;
      2. from Countrywide FSB to Countrywide Home Loans, Inc.;
      3. from Countrywide Home Loans, Inc. to Countrywide HLS.; and
      4. from Countrywide HLS indorsed in the blank.

    The trial court granted a second motion to substitute plaintiff, this time
filed by BAC, seeking to replace itself with BANA, since BAC merged into
BANA.

    Eventually, a non-jury trial on the mortgage foreclosure count was
conducted. BANA called one witness, who testified that the note had four
indorsements. However, the witness was unable to testify as to the date
that any of the indorsements were placed on the note. She did not testify
as to the date the note was transferred from the original lender to
Countrywide Bank, FSB, in part because the trial court interrupted the
questioning on cross-examination with the comment: “She already said
she doesn’t know the dates on the endorsement.” Although a screenshot
of the business record information maintained by BANA was admitted into
evidence, from which the witness testified that a subsidiary of Countrywide
had possession of the note since May 29, 2007 (almost two years before
suit was filed), the witness was not asked, and did not testify, that the
business records showed the note was indorsed at the time suit was filed.

   After denying the Homeowner’s motion for involuntary dismissal, which
included arguments as to standing, the trial court entered a final judgment
foreclosing the mortgage. The Homeowner gave notice of appeal.

                              Appellate Analysis

   We review de novo whether a party has standing to bring an action.

                                      2
Dixon v. Express Equity Lending Grp., LLLP, 125 So. 3d 965, 967 (Fla. 4th
DCA 2013) (citing Westport Recovery Corp. v. Midas, 954 So. 2d 750, 752
(Fla. 4th DCA 2007)).

   “[T]he plaintiff must prove that it had standing to foreclose when the
complaint was filed.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.
3d 170, 173 (Fla. 4th DCA 2012). Additionally, “[a] plaintiff alleging
standing as a holder must prove it is a holder of the note and mortgage
both as of the time of trial and also that the (original) plaintiff had standing
as of the time the foreclosure complaint was filed.” Kiefert v. Nationstar
Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014).

   Here, there were the four indorsements on the note, which can easily
be followed from the original lender to BANA. However, the problem arises
because there was no evidence that the note was indorsed in a manner to
give the original plaintiff the status of holder at the time suit was filed.

    In Kiefert, the First District explained that the bank in that case “must
prove not only physical possession of the original note but also, if the
plaintiff is not the named payee, possession of the original note endorsed
in favor of the plaintiff or in blank.” 153 So. 3d at 353 (emphasis added).
BANA argues that since the witness testified that Countrywide, an entity
subsequently acquired by BANA, had possession of the note on May 29,
2007, and there was a blank indorsement on the note when it was filed
with the court, that proves the original plaintiff and BANA had standing to
seek foreclosure of the mortgage. Such evidence was sufficient to prove
BANA had standing at the time of trial, but the evidence was insufficient
to prove the original plaintiff, an entity subsequently acquired by BANA,
had standing at the time suit was filed.

   We therefore reverse the final judgment of foreclosure, and remand the
case with instructions that the trial court enter an order of involuntary
dismissal. See Colson v. State Farm Bank, F.S.B., 40 Fla. L. Weekly D879,
*2 (Fla. 2d DCA Apr. 15, 2015).

   Reversed and remanded with instructions.

GROSS and MAY, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.



                                       3
