By: Douglas L. Waldorf, Jr.
The legal right to enforce, by judicial proceeding, a promissory note and mortgage is referred to as “standing”. This has been a hot topic in Florida foreclosure cases with courts holding that standing must exist when the suit is filed and, if it does not, the lack of standing is a defect that cannot be cured once the foreclosure suit has begun (though this question has recently been certified to the Florida Supreme Court).
So, is standing included as an element in a cause of action that a foreclosing plaintiff must prove or is it an affirmative defense that must be raised by the defendant? In a recent 5 th DCA opinion, the district court found both to be correct. In Beaumont v. Bank of New York Mellon, Inc., the Court reversed the trial court’s entry of summary judgment as the bank was unable to demonstrate that it had standing to bring the lawsuit. The defendant had apparently not raised standing as an affirmative defense in its pleadings, doing so for the first time at the summary judgment hearing. The bank argued that standing, as an affirmative defense, was waived as the defendant had not raised it in its pleadings.
The 5 th DCA found that the foreclosing plaintiff “…must prove its right to enforce the note as of the time the summary judgment is entered, even if Beaumont (the defendant) had waived the right to challenge the bank’s standing…” The Court further stated that, while standing is an affirmative defense and it can be waived, in cases where the facts giving rise to a standing issue were not known to the defendant at the time it filed an answer, it could in fact raise the issue for the first time at summary judgment.