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

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

JOHN J. BENZ and TRICIA McLAGAN,   )
                                   )
           Appellants,             )
                                   )
v.                                 )                  Case No. 2D13-974
                                   )
FEDERAL HOME LOAN MORTGAGE         )
CORP.,                             )
                                   )
           Appellee.               )
__________________________________ )

Opinion filed August 22, 2014.

Appeal from the Circuit Court for Polk
County; Ellen S. Masters, Judge.

C. Michael Duncan of Duncan Law
Offices, P.A., Tavares, for Appellants.

Edward J. O'Sheehan of Shutts & Bowen,
LLP, Fort Lauderdale, for Appellee.


NORTHCUTT, Judge.

              John Benz and Tricia McLagan, husband and wife, appeal a final

summary foreclosure judgment in favor of Federal Home Loan Mortgage Corp. (Freddie

Mac). We reverse because the record fails to resolve material issues of fact regarding

Freddie Mac's standing.

              Freddie Mac filed the mortgage foreclosure action against Benz,

McLagan, and others on March 11, 2009. The complaint alleged that the note and
mortgage were recorded in January 2005 and that the mortgage was subsequently

assigned to Freddie Mac "by virtue of an assignment to be recorded." The complaint

attached a copy of the mortgage only and included a count to establish a lost,

destroyed, or stolen note and mortgage. National City Mortgage Co. was the lender

identified in the mortgage; Benz and McLagan were identified as the borrowers. In a

motion to dismiss, the borrowers asserted, in part, that Freddie Mac was not the

mortgagee.

             Freddie Mac eventually filed an amended complaint dropping the count to

establish a lost note and mortgage and alleging that the mortgage was assigned to it "by

virtue of an assignment recorded on August 31, 2009." The attached assignment

reflected that it was executed on August 5, 2009, after the foreclosure action was filed,

and recorded on August 31, 2009. The assignment stated that the mortgage was

assigned to Freddie Mac c/o National City Bank "as of the 3RD day of March, 2009,"

eight days before the foreclosure action was filed. It was executed by a vice president

of National City Bank, successor by merger to National City Mortgage Co. The

amended complaint attached a copy of the note this time, but not the mortgage. The

note bore an undated endorsement in blank by National City Mortgage Co.

             Freddie Mac and the borrowers ultimately filed competing motions for

summary judgment. The borrowers' motion attacked Freddie Mac's standing at the time

the original complaint was filed. After a hearing, the circuit court granted summary

judgment for Freddie Mac, specifically rejecting the borrowers' challenge to standing.

             Summary judgment is governed by Florida Rule of Civil Procedure 1.510,

which provides in part that judgment "shall be rendered forthwith if the pleadings and



                                           -2-
summary judgment evidence on file show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law." Fla.

R. Civ. P. 1.510(c). We review summary judgments de novo. Volusia Cnty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

              The borrowers argue that the record does not conclusively show that

Freddie Mac had standing at the time it filed the original complaint on March 11, 2009.

Freddie Mac first responds that the issue is not preserved because the borrowers did

not raise lack of standing as an affirmative defense. While that may have been

preferable, the issue was nevertheless raised before the circuit court. As this court has

explained, the issue of standing may be raised by motion rather than by pleading an

affirmative defense.

              [W]e reject the University's argument that because Maynard
              did not raise standing as an affirmative defense prior to trial,
              he waived the issue. . . . [T]he pertinent question is whether
              the issue was raised at the trial court, not how it was raised
              . . . . [S]tanding may not be raised for the first time on
              appeal; however, it does not necessarily require that
              standing be raised only by means of an affirmative defense.

Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 998 So. 2d 1201, 1206 (Fla. 2d

DCA 2009) (citations omitted).

              The borrowers' answer denied the allegations of the amended complaint

that pertained to standing, they raised lack of standing in a motion for summary

judgment, and they argued lack of standing in a memorandum filed in opposition to

Freddie Mac's motion for summary judgment. Thus, the standing issue was argued to

and directly rejected by the circuit court, and we conclude that it was preserved for

appeal.



                                            -3-
              On the merits, we reverse. Freddie Mac filed a note endorsed in blank by

the original lender, National City Mortgage Co. But the endorsement was undated, and

the note was not filed with the original complaint. Freddie Mac points out that National

City Mortgage merged out of existence in 2008; the endorsement necessarily predated

that event. But this does not mean that Freddie Mac obtained the note in 2008.

Nothing in the record shows when Freddie Mac obtained the note; specifically, the

record does not establish that it held the note when it filed the foreclosure action in

March 2009.

              Further, the document assigning the mortgage to Freddie Mac was

executed and recorded several months after the foreclosure action commenced,

although it recited an effective date just prior to the date the complaint was filed. The

Fourth District has explained that two competing inferences may be drawn from an

assignment that prescribes an earlier effective date: that the subject of the assignment

was equitably transferred on the stated effective date, or that the parties to the transfer

"were attempting to backdate an event to their benefit." Vidal v. Liquidation Props., Inc.,

104 So. 3d 1274, 1277 (Fla. 4th DCA 2013) (reversing summary judgment of

foreclosure because the record did not reflect as a matter of law the plaintiff's standing

on the date the complaint was filed).

              The record in this case fails to demonstrate Freddie Mac's standing on the

date the complaint was filed. Accordingly, we reverse the summary judgment. See

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

summary judgment of foreclosure when there was a genuine issue of material fact

regarding the bank's standing at the time the complaint was filed; standing not



                                            -4-
established by either bank's subsequent filing of assignment dated after complaint filed

or bank's filing of note endorsed in blank but undated and not submitted until several

months after complaint was filed). Our decision renders moot the second issue on

appeal.

             Reversed and remanded for further proceedings.



CASANUEVA and WALLACE, JJ., Concur.




                                          -5-
