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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



TONY ROBINSON and DEBRA                      )
ROBINSON,                                    )
                                             )
              Appellants,                    )
                                             )
v.                                           )          Case No. 2D18-2842
                                             )
NATIONSTAR MORTGAGE LLC and                  )
REGENCY WEST APARTMENTS II                   )
ASSOCIATION,                                 )
                                             )
              Appellees.                     )
                                             )

Opinion filed December 4, 2019.

Appeal from the Circuit Court for Pinellas
County; Marion L. Fleming, Judge.

Matthew D. Weidner of Weidner Law,
P.A., St. Petersburg, for Appellants.

Nancy M. Wallace of Akerman LLP,
Tallahassee; and William P. Heller of
Akerman LLP, Fort Lauderdale, for
Appellee Nationstar Mortgage LLC.

No appearance for Appellee Regency
West Apartments II Association.

SLEET, Judge.

              Tony and Debra Robinson appeal the trial court's amended final judgment

of foreclosure entered in favor of Nationstar Mortgage, LLC, after a nonjury trial.

Because Nationstar failed to establish its standing at the inception of the lawsuit and the
trial court abused its discretion in granting Nationstar's motion to reopen the evidence to

submit additional proof of standing, we reverse and remand for entry of involuntary

dismissal.

              This case has a long and convoluted procedural history. The note and

mortgage executed by the Robinsons in 2006 was negotiated among several

mortgagees before it was ultimately transferred by special endorsement to Deutsche

Bank Trust Company. On February 28, 2012, Aurora Loan Services, LLC, filed the

underlying foreclosure action against the Robinsons, alleging that it was the servicer for

Deutsche Bank and that it had standing to enforce the note as a nonholder in

possession of the note. The Robinsons timely filed their answer and affirmative

defenses, one of which was that Aurora lacked standing to bring the foreclosure action.

Shortly thereafter, Nationstar was substituted as party plaintiff in place of Aurora.

              A nonjury trial was held, and in their written closing argument, the

Robinsons argued that Nationstar had failed to establish that Aurora had standing at the

inception of the case and that therefore the case should be dismissed. The trial court,

however, disagreed and entered a final judgment of foreclosure in favor of Nationstar on

June 25, 2015. The Robinsons moved for rehearing, arguing that Nationstar's evidence

was insufficient to establish Aurora's standing at the inception of the lawsuit. Nationstar

opposed the Robinsons' motion but conceded that it had not established its entitlement

to attorney fees and requested that the court allow it to reopen the evidence as to that

specific issue. The court denied the Robinsons' motion for rehearing on standing but

granted Nationstar's request to reopen the evidence as to attorney fees and ordered

Nationstar to schedule a hearing to address that issue.




                                            -2-
              Nationstar never set a hearing on attorney fees, and no corrected final

judgment was ever submitted to the court. Instead, a foreclosure sale took place on

December 16, 2015. The Robinsons moved to vacate the sale, arguing that it was

improper to hold a foreclosure sale where no final judgment of foreclosure had been

rendered. The trial court granted the motion.

              However, before a final judgment could be rendered, Nationstar moved to

reopen the evidence "to present additional proof of standing." Nationstar maintained

that reopening the evidence would not prejudice the Robinsons because the trial court

had previously agreed to open the evidence as to attorney fees and the judgment was

not yet final. The trial court granted the motion over the Robinsons' objection, noting in

its order that Nationstar had now waived its claim for attorney fees—the claim that had

been the sole impediment to a final judgment being entered after the trial court granted

Nationstar's request to reopen the evidence after entry of the initial final judgment. The

trial court then conducted a second trial on June 20, 2018, following which it entered its

amended final judgment of foreclosure in Nationstar's favor.

              On appeal, the Robinsons argue that Nationstar's evidence in the first

nonjury trial was insufficient to establish Aurora's standing at inception and that the trial

court abused its discretion by allowing Nationstar to correct that deficiency by reopening

the evidence as to standing three years after the first trial. We agree in both respects.

              With regard to the Robinsons' first argument, "[a] substituted plaintiff

acquires only the standing of the original plaintiff." Russell v. Aurora Loan Servs., LLC,

163 So. 3d 639, 642 (Fla. 2d DCA 2015); see also Kiefert v. Nationstar Mortg., LLC, 153

So. 3d 351, 353 n.4 (Fla. 1st DCA 2014). Furthermore, a foreclosure "plaintiff must

prove that it had standing to foreclose when the complaint was filed." McLean v. JP

                                             -3-
Morgan Chase Bank Nat'l Ass'n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). As such,

Nationstar, as successor plaintiff, had the burden to prove that its predecessor Aurora

had standing to foreclose at the time it filed the complaint.

              To that end, "Florida Rule of Civil Procedure 1.210(a), the real party in

interest rule, 'permits an action to be prosecuted in the name of someone other than,

but acting for, the real party in interest.' " Russell, 163 So. 3d at 642 (quoting Mortg.

Elec. Registration Sys., Inc. v. Azize, 965 So. 2d 151, 153 (Fla. 2d DCA 2007)). "Thus,

'a servicer may be considered a party in interest to commence legal action as long as

the [real party in interest] joins or ratifies its action.' " Russell, 163 So. 3d at 642-43

(emphasis added) (quoting Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87

So. 3d 14, 17 (Fla. 4th DCA 2012)).

              Here, however, Nationstar failed to prove at the first trial that Aurora had

been given legal authority to act on behalf of Deutsche Bank to bring this foreclosure

action. At the first trial, Nationstar admitted into evidence the mortgage and original

note, which was payable to Aegis Wholesale Corporation and bore three undated

special endorsements. The first endorsement was from Aegis Wholesale Corporation to

Aegis Mortgage Corporation. The second was from Aegis Mortgage Corporation to

Residential Funding Company, LLC. And the third endorsement was from Residential

Funding Company, LLC, to Deutsche Bank Trust Company Americas as trustee.

Nationstar also presented a senior default specialist who had been employed with

Nationstar since 2013 and who testified that Aurora possessed the note in 2009. This

evidence, however, did not establish that at the time it filed the complaint, Aurora had

been authorized by Deutsche Bank to prosecute the foreclosure on Deutsche Bank's

behalf.

                                              -4-
              This case is factually similar to Russell, 163 So. 3d at 643. Like in

Russell, Nationstar failed to present "any evidence, affidavits[,] or other documents"—

such as a pooling and service agreement, an assignment agreement, trust records, or

mortgage loan schedules—to support "its allegation that it was authorized to prosecute

the action on behalf of" Deutsche Bank. See id. (alteration in original) (quoting Elston/

Leetsdale, 87 So. 3d at 17). And, as in Russell, Aurora itself verified the complaint,

rather than it being verified by the real party in interest—Deutsche Bank. See id.

Furthermore, Nationstar introduced, over the Robinsons' objection, a limited power of

attorney (POA) by which Deutsche Bank had appointed Nationstar as successor

servicer to Aurora "in connection with all mortgage loans serviced by the Servicer

pursuant to the Agreement." However, the POA was dated August 6, 2012—more than

five months after the initial complaint was filed—and it indicated that Nationstar

assumed the servicing of "mortgage loans" in August 2012, but it did not make any

reference to whether the Robinsons' loan was included in the trust. See id. Faced with

almost identical evidence in Russell, this court concluded that "Nationstar's evidence

established that it was the current loan servicer for Deutsche Bank; it did not prove that

Aurora had standing as a prior servicer." Id.

              As such, at the close of the first trial, Nationstar had failed to establish its

standing, as successor plaintiff to Aurora, at the inception of the case. Accordingly, the

trial court erred in entering final judgment of foreclosure in favor of Nationstar following

the first trial and in denying the Robinsons' motion for rehearing of that judgment.

              On appeal, Nationstar maintains that it established its standing through

evidence it presented at the second trial, which the court conducted after it granted

Nationstar's motion to reopen the evidence. However, we conclude that this evidence

                                             -5-
was not properly before the trial court because the trial court abused its discretion in

reopening the evidence to allow Nationstar to present additional proof of standing.

              It is true that a trial court has discretion to reopen evidence and take

additional testimony. See Fla. R. Civ. P. 1.530(a) ("On a motion for a rehearing of

matters heard without a jury . . . the court may open the judgment if one has been

entered, take additional testimony, and enter a new judgment."). However, "[g]enerally,

to reopen a case, a party must establish two evidentiary predicates. The first predicate

is that the presentation of evidence will not unfairly prejudice the opposing party[,] and

[the] second [is] that reopening will serve the best interests of justice." Gulf Eagle, LLC

v. Park E. Dev., Ltd., 196 So. 3d 476, 479 (Fla. 2d DCA 2016). Additionally, "the trial

judge should consider . . . the magnitude of the moving party's omission." Hernandez v.

Cacciamani Dev. Co., 698 So. 2d 927, 928 (Fla. 3d DCA 1997).

              Here, in its order granting Nationstar's motion to reopen the evidence, the

trial court concluded that the Robinsons would not be unfairly prejudiced "as this [c]ourt

has already found that Plaintiff Bank had standing to foreclose pursuant to Order

entered on May 4, 2015." Putting aside our confusion as to why the trial court felt the

need to reopen the evidence on an issue it believed the plaintiff had already proven, for

the reasons we have already set forth, it is clear that Nationstar in fact did not prove

standing at the first trial. As such, the trial court's reopening the evidence allowed

Nationstar the proverbial second bite at the apple to prove an essential element of its

case.

              The Robinsons had immediately moved for rehearing following entry of the

initial final judgment of foreclosure and spelled out exactly how Nationstar's evidence

was lacking with regard to proving standing at inception. By successfully moving to

                                            -6-
reopen the evidence on the issue of attorney fees but never following through on that

issue by securing hearing time or submitting a corrected final judgment, Nationstar

successfully kept this case pending before the trial court for three years. During that

time, the Robinsons were unable to bring what would have been a successful appeal of

that final judgment. Instead, Nationstar used the Robinsons' own rehearing argument to

correct the deficiencies in its case and present evidence that it no doubt had access to

before—and could have presented at—the first trial. We can come to no other

conclusion but that the trial court's decision to allow Nationstar to reopen its evidence to

present additional proof of standing greatly prejudiced the Robinsons without serving

the best interests of justice. Furthermore, as Nationstar acknowledged in its motion to

reopen the evidence, standing is "an essential element of th[is] foreclosure action,"

rendering its evidentiary failure at the first hearing an omission of great magnitude. Cf.

Hernandez, 698 So. 2d at 928-29.

              As such, the trial court's inexplicable decision to grant Nationstar a "do

over" in the form of a second trial three years after the final judgment of foreclosure had

been entered amounted to an abuse of discretion. And Nationstar's failure to present

sufficient evidence of standing at the first trial constitutes a failure of proof for which

remand for entry of involuntary dismissal of the complaint is appropriate. See Correa v.

U.S. Bank N.A., 118 So. 3d 952, 956 (Fla. 2d DCA 2013) ("[A]ppellate courts do not

generally provide parties with an opportunity to retry their case upon a failure of proof."

(alteration in original) (quoting Morton's of Chicago, Inc. v. Lira, 48 So. 3d 76, 80 (Fla.

1st DCA 2010)); see also Dickson v. Roseville Props., LLC, 198 So. 3d 48, 52 (Fla. 2d

DCA 2015); Creadon v. U.S. Bank N.A., 166 So. 3d 952, 954 (Fla. 2d DCA

2015); Russell, 163 So. 3d at 643.

                                              -7-
          Reversed and remanded for entry of involuntary dismissal.


BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                     -8-
