        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             FRANK WATERS,
                                Appellant,

                                      v.

WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual
 capacity but as Trustee for ARLP SECURITIZATION TRUST SERIES
2015-1, as party plaintiff for U.S. BANK NATIONAL ASSOCIATION, as
 trustee for the benefit of the Holders of SerVertis Fund I Trust 2008-1
Certificates, Series 2008-1 acting by and through Green Tree Servicing
                     LLC, in its capacity as Servicer,
                                 Appellee.

                              No. 4D17-2300

                              [June 13, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Senior Judge; L.T. Case No. 50-2011-CA-
005018-XXXX-MB-AW.

  Brittani S. Gross and Kendrick Almaguer of The Ticktin Law Group,
PLLC, Deerfield Beach, for appellant.

   Roy A. Diaz of SHD Legal Group, P.A., Fort Lauderdale, for appellee.

GROSS, J.

   The issue in this case is whether Wilmington Trust, the substituted
plaintiff, established that the original plaintiff had standing to bring this
foreclosure action. Because there was insufficient evidence of the original
plaintiff’s standing, we reverse the final judgment of foreclosure.

   As evidence of its standing, the original plaintiff attached copies of the
note, the mortgage, and an assignment of the mortgage to the complaint.
The note attached to the complaint was not made payable to the plaintiff,
and it contained no indorsements.             The assignment unequivocally
assigned only the mortgage – the note was not mentioned. More than a
year later, the plaintiff filed the original note. Unlike the note attached to
the complaint, the original note was indorsed in blank.
   Wilmington Trust was substituted for the original plaintiff. The only
witness to testify at the non-jury trial was an employee of the servicer. The
witness acknowledged the indorsement on the note, but was not asked
when the indorsement was placed or when the original plaintiff came into
possession of the note. The witness was not asked when the loan was
transferred to the original plaintiff, and testified that he assumed the
assignment of the mortgage was also an assignment of the note. In the
end, when asked if there were any documents in evidence establishing that
the original plaintiff ever held the note, the witness said, “not before me.”

   “[A] plaintiff in a foreclosure action must establish its standing both at
the time the complaint was filed and when judgment is entered.” Spicer v.
Ocwen Loan Servicing, LLC, 238 So. 3d 275, 278–79 (Fla. 4th DCA 2018).
A substituted plaintiff is required to establish that the original plaintiff had
standing when it filed the original complaint. Luiz v. Lynx Asset Servs.,
LLC, 198 So. 3d 1102, 1105 (Fla. 4th DCA 2016).

    Here, Wilmington Trust failed to establish the original plaintiff had
standing as either a holder or a nonholder in possession because there
was no proof the original plaintiff had possession of the note when the
action was commenced. Because the original note was not the same as
the note attached to the complaint, the fact that the original plaintiff
eventually filed the original note was not proof of its standing or possession
of the original note at the time suit was commenced. See Friedle v. Bank
of New York Mellon, 226 So. 3d 976, 978-79 (Fla. 4th DCA 2017).

   Because Wilmington Trust failed to prove the original plaintiff’s
standing when suit was filed, the trial court erred in entering the final
judgment of foreclosure. We reverse and remand for vacation of the final
judgment and entry of an involuntary dismissal of the complaint.

GERBER, C.J., and CONNER, J., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      -2-
