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Where record shows that plaintiff did not obtain standing through assignment of note and mortgage until after foreclosure complaint was filed, motion to vacate final judgment of foreclosure is granted

Plaintiff filed a foreclosure action August 4, 2008.   The complaint stated Plaintiff  had the right to enforce the note and mortgage by virtue of an assignment of the note and mortgage.    The Complaint does not attach a copy of the note, and the plaintiff did not plead that it lacked a copy.  An assignment executed before a California notary on August 11, 2008 — seven days after the foreclosure action commence, and prepared by the plaintiff’s attorney was subsequently filed in court on May 18, 2009.

Final Judgment of Foreclosure was entered on July 28, 2009.   The foreclosure sale has never taken place.  Defendants filed a motion to vacate the judgment of foreclosure.

An assignment of mortgage executed after the filing of the complaint does not support a plaintiff’s claim of standing. Sandoro v. HSBC Bank, USA National Ass’n, 55 So. 3d 730 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D499b]. The plaintiff cannot gain standing retroactively, after the action has commenced. Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b]. Instead, it must dismiss the action and file a new action after standing has been acquired. Id.; Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990).

Therefore,   the Plaintiff did not have standing to foreclose at the time it filed the Complaint on August 4, 2008. In order to foreclose, plaintiff must show that it owns and holds the note and mortgage in question. Verizzo v. Bank of N.Y., 28 So.3d 976, 978 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D494a]; Country Place Cmty. Ass’n, Inc. v. J.P. Morgan Mortg. Acquisition Corp., 51 So. 3d 1176 (Fla. 2d DCA 2010) [36 Fla. L. Weekly D31a] (plaintiff lacked standing to foreclose where did not own or possess the note and mortgage when it filed its lawsuit).

The circuit courts have authority to set aside a decree of foreclosure at any time before the sale thereof has been actually made pursuant to the terms of such decree, and to dismiss the foreclosure proceeding upon the payment of all court costs.

Accordingly, the motion to vacate is GRANTED. The final judgment of foreclosure dated July 28, 2009, is hereby vacated.

US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR ABFC 2006-HE1 TRUST, , v. KENDER, Circuit Court, 6th Circuit in and for Pasco County, Civil Division. Case No. 51-2008-CA-006387-ES/J1. December 14, 2011. Online Reference: FLWSUPP 1905KEND


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