                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                IN THE DISTRICT COURT OF APPEAL

                                                OF FLORIDA

                                                SECOND DISTRICT


MICHAEL B. DICKSON and              )
MAGDALENA DICKSON,                  )
                                    )
           Appellants,              )
                                    )
v.                                  )                         Case No. 2D14-1137
                                    )
ROSEVILLE PROPERTIES, LLC,          )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed November 6, 2015.
Appeal from the Circuit Court for
Manatee County; Thomas M. Gallen,
Senior Judge.

Michael B. Dickson and Magdalena
Dickson, pro se.

Peter P. Hagood of Hagood & Garvey,
Maitland, for Appellee.


SALARIO, Judge.

              In this residential foreclosure action, Michael and Magdalena Dickson

appeal from a final judgment in favor of Roseville Properties, LLC, rendered after a

nonjury trial. Prior to trial, Roseville was substituted as plaintiff in place of Nationstar

Mortgage, LLC, which originally filed the action. Because Roseville failed to prove at
trial that Nationstar had standing when it filed suit, we reverse and remand with

instructions to enter an order of involuntary dismissal.

              In September 2007, the Dicksons borrowed $224,000 from Ameripath

Mortgage Corporation to finance the purchase of a residence. The debt was evidenced

by a note showing the Dicksons as borrowers and Ameripath as lender and secured by

a mortgage showing the Dicksons as borrowers and Mortgage Electronic Registration

Systems, Inc. (MERS), as nominee for Ameripath as lender. Beginning in November

2009, the Dicksons defaulted on the note by failing to make their mortgage payments.

              On July 18, 2011, Nationstar filed a verified foreclosure complaint against

the Dicksons. It alleged that it was entitled to enforce the note and mortgage but did not

allege the factual or legal basis for that right. The only exhibits to the complaint were

copies of the note and mortgage, which, because they made no reference to Nationstar,

also failed to show the basis of its asserted right to foreclose. The Dicksons filed

affirmative defenses alleging, among other things, that Nationstar lacked standing to

enforce the note because it failed to establish any basis for doing so.

              On October 26, 2012, Roseville filed a motion to substitute itself for

Nationstar as plaintiff. It alleged that after the complaint was filed, Nationstar's interest

in the mortgage was transferred to Roseville. The Dicksons responded that Roseville

lacked standing because Nationstar, from which Roseville acquired any rights it had,

also lacked standing. The trial court granted the motion, and Roseville was substituted

for Nationstar as the plaintiff in this case.

              Roseville later filed the original note, which contained no endorsement,

and the original mortgage. It also filed a document which reflected an assignment of the

Dickson's mortgage from Kondaur Capital Corporation to Roseville on August 16, 2012.
                                                -2-
Roseville also served the Dicksons with a set of requests for admissions. Those

requests sought admissions that Roseville was the owner of the note, the current holder

of the note, the owner of the mortgage, and the current holder of the mortgage. The

Dicksons failed to answer the requests.

              On September 6, 2013, the Dicksons filed a motion to dismiss alleging

that Roseville lacked standing to foreclose because Nationstar lacked such standing at

the time the suit was filed. They attached copies of six assignments of their mortgage,

all of which were dated after the foreclosure complaint was filed on July 18, 2011: (1) an

assignment from MERS as nominee for Ameripath to U.S. Bank, N.A., "as trustee for

the Maiden Lane Asset Backed Securities I Trust 2008-1, c/o Nationstar" (U.S. Bank c/o

Nationstar) dated September 22, 2011; (2) an assignment from MERS as nominee for

Ameripath directly to Nationstar dated September 23, 2011; (3) an assignment from

U.S. Bank c/o Nationstar to Kondaur dated December 16, 2011; (4) an assignment from

U.S. Bank c/o Nationstar to Selene Finance dated February 2, 2012; (5) an assignment

from Nationstar to Kondaur dated April 25, 2012; and (6) an assignment from Kondaur

to Roseville dated August 16, 2012. Six days later, the trial court entered an order

denying the Dicksons' motion. On September 18, 2013, the Dicksons filed a second

motion to dismiss for lack of standing. The trial court again denied the motion.

              The trial court held a bench trial on February 10, 2014. As its sole

witness, Roseville called Taisha Cintron, a Roseville account representative. She

testified that she was familiar with the Dicksons' account, that their file was kept in the

ordinary course of business, and that the loan was in default. Through Ms. Cintron,

Roseville introduced the Dicksons' loan history into evidence. Ms. Cintron did not

provide any testimony concerning Nationstar's entitlement to foreclose at the time suit
                                            -3-
was filed or Roseville's entitlement to foreclose at the time of trial. At the close of

Roseville's case, the Dicksons moved to dismiss based on Roseville's lack of standing.

The trial court denied this motion and granted judgment in favor of Roseville.

                  Where, as here, the defendant asserts a lack of standing as a defense to

foreclosure, it is incumbent upon the plaintiff to prove its standing at trial. Gonzalez v.

Deutsche Bank Nat'l Trust Co., 95 So. 3d 251, 253-54 (Fla. 2d DCA 2012). This

requires the plaintiff to show that it is the "holder" of the note or a person acting on

behalf of the holder. Mortg. Elec. Regis. Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla.

2d DCA 2007). If the plaintiff is not the original lender, it may establish its standing as a

holder "by submitting a note with a blank or special endorsement, an assignment of the

note, or [with a sworn statement] otherwise proving the plaintiff's status as the holder of

the note." Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013)

(citing McLean v. JP Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA

2012)). A plaintiff that is not a holder, such as a mortgage servicer, can establish

standing through proof that it is authorized to enforce the note on behalf of the holder.

Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642-43 (Fla. 2d DCA 2015).

              For better or for worse, it is settled that it is not enough for the plaintiff to

prove that it has standing when the case is tried; it must also prove that it had standing

when the complaint was filed.1 May v. PHH Mortg. Corp., 150 So. 3d 247, 248-49 (Fla.

2d DCA 2014); see also Focht, 124 So. 3d at 311-12 (describing "a long line of supreme

court cases" requiring that a plaintiff have standing at the inception of the case). In


              1
               The rule requiring a plaintiff to prove its standing at the inception of suit at
any point up to and through trial does present difficult issues both as a matter of legal
doctrine and as a matter of practical application. See Focht, 124 So. 3d at 312-13
(Altenbernd, J., concurring).
                                             -4-
Russell, we applied the rule requiring proof of standing at inception of the case to a

substituted plaintiff and held that it was required to demonstrate that the original plaintiff

had standing when the suit was filed. 163 So. 3d at 642. There, the original plaintiff

alleged in its complaint that it was the servicer of the mortgage at issue, and it later

sought to substitute a new plaintiff in its place based on an assignment of mortgage to

that new plaintiff. Id. at 641. The defendant raised lack of standing as an affirmative

defense, and at trial the substituted plaintiff failed to show that the original plaintiff had

standing either as a holder or as servicer authorized by the holder to enforce the note.

Id. at 641-42. Because the substituted plaintiff failed to prove the original plaintiff's

standing at inception, we reversed the final judgment of foreclosure. Id. at 643.

              This case is indistinguishable from Russell. The record is devoid of any

evidence that Nationstar had standing when it filed suit. The original note and mortgage

filed with the trial court contain no indication that Nationstar was the holder at the time

the complaint was filed. There is no documentary evidence to indicate that Nationstar

had the right to enforce the note on behalf of someone else at the time the complaint

was filed. Roseville presented no testimony to show that Nationstar had standing at

inception. On the contrary, the only evidence in this record related to Nationstar—the

postfiling assignments of mortgage from MERS to U.S. Bank c/o Nationstar Mortgage,

LLC and, subsequently, to Nationstar directly—could establish only that Nationstar

acquired standing in some manner after it filed the complaint.

              Roseville asserts that because the Dicksons failed to respond to its

requests for admissions about its status as the "owner" and "current holder" of the note

and mortgage, those requests are deemed admitted and its standing is proved. See

Fla. R. Civ. P. 1.370(a), (b) (providing that unanswered requests for admission are
                                              -5-
deemed admitted and that any matter admitted is conclusively established unless the

court permits withdrawal or amendment). The problem with this argument is that

Roseville did not propound any requests related to whether Nationstar was either the

holder of the note or acting on behalf of the holder of the note at the time it filed suit. Its

requests went solely to whether Roseville was the "owner" and "current holder" of the

note and mortgage. The Dicksons' technical admissions of those requests establishes

at most that Roseville had standing when the requests were served and the Dicksons

failed to answer them, not that Nationstar had standing when it filed suit.2 See Russell,

163 So. 3d at 643 (rejecting as proof of standing at inception a power of attorney dated

eighteen months after the complaint was filed).

               Because Roseville failed to prove standing at inception of the suit, the trial

court erred in granting it a final judgment. In light of Roseville's failure of proof, the trial

court was obliged to grant the Dicksons the dismissal they sought. See id.; May, 150

So. 3d at 249. Accordingly, the judgment below is reversed and the case is remanded

to the circuit court with instructions to enter an order of involuntary dismissal. This

disposition renders the numerous other issues the Dicksons have raised on appeal

moot, and we therefore decline to address them.

               Reversed and remanded with instructions.



NORTHCUTT and LaROSE, JJ., Concur.




               2
              The Dicksons filed with the trial court a "motion to strike" the requests for
admissions, alleging that they never received them. The trial court denied that motion.
The Dicksons have not appealed that denial.
                                           -6-
