Not if the foreclosure plaintiff proves standing before and during trial, even if the complaint does not show standing.
In the case of Le v. U.S. Bank, ___ So. 3d ___, 2015 WL 2414456 (Fla. 5th DCA May 22, 2015), Ms. Le challenged the standing of Wachovia Bank to foreclose on property mortgaged by Ms. Le and her husband. Wachovia was the original plaintiff in foreclosure in this case, suing as Trustee for Certificate Holders of Mortgage Pass-Through Certificates. U.S. Bank was substituted as the proper plaintiff “[b]ased on a name and trustee change”.
When Wachovia filed its foreclosure complaint, Wachovia attached a copy of the note it sued on. However, the note attached to Wachovia’s complaint “did not contain the endorsement to Wachovia.” Le v. U.S. Bank, ___ So. 3d ___, 2015 WL 2414456 *2 (Fla. 5th DCA May 22, 2015). So, the complaint did not show why or how Wachovia had standing to foreclose.
Not to worry, at least under Florida law and in this case. The Florida appellate court held that “Wachovia” (or U.S. Bank by another name) established its standing to sue by filing the proper endorsement to the note before trial, and by putting on evidence at trial which showed its standing to sue :
Wachovia established standing by filing the original note containing the endorsement before trial and presenting evidence at trial from which the court could determine that the endorsement occurred prior to filing the complaint.
Le v. U.S. Bank, ___ So. 3d ___, 2015 WL 2414456 *2 (Fla. 5th DCA May 22, 2015).
Whether and when there will be liability or other insurance coverage for wrongful foreclosure due to lack of standing is apparently still an open question in Florida. Certainly in this case, there was standing and so the foreclosure proceeding was legally righteous.
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