Florida Foreclosure Standing- the Pooling and Servicing Agreement https://dewittlaw.com/foreclosure/8256/foreclosure-standing-pooling-ser...

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1 of 4 1/4/2024, 3:29 PM
Florida Foreclosure Standing- the Pooling and Servicing Agreement https://dewittlaw.com/foreclosure/8256/foreclosure-standing-pooling-ser...

Foreclosure Standing LITIGATION

COMMERCIAL

and the Pooling and DIVORCE IN

TRANSACTIONS
Servicing Agreement
ESTATE PLANNING
FLORIDA
 Posted by DeWitt Law Firm, P.A.
 in Foreclosure, Real Estate Law
FAMILY LAW

In light of the wealth of

FORECLOSURE
current case law on this
issue, it should no longer be
a surprise to a foreclosure MOTORCYCLE
DEFENSE
plainti� that it must prove that it had standing to
foreclose on the date the original complaint was PERSONAL
ACCIDENTSINJURY
�led. However, foreclosure Plainti�s have recently
begun to rely more heavily upon the REAL ESTATE LAW
to satisfy the standing
requirement when it comes to securitized loans. WRONGFUL DEATH
While standing can be demonstrated through a
Pooling and Servicing Agreement, it does not due so Schedule A
automatically without further additional
corroborating evidence to demonstrate that the � How can I help you?
note was part of the pooling and servicing
agreement on the day that the foreclosure

complaint was initiated. The bank must still provide
Legal
competent substantial evidence that it held the
note on the date that the foreclosure case was �led. Videos
While the initial case law concerning Pooling and
11 Servicing Agreements seemed to give foreclosure
July
Plainti�s extraordinary latitude when it comes to
standing, it appears that the trial courts are now
 narrowing that prior leniency. In Deutsche Bank View on Youtube
Share Nat’l Tr. Co. v. Marciano, 190 So. 3d 166, 167 (Fla.
5th DCA 2016), the Fifth District Court of Appeal
held that when the PSA evidenced a closing date
which pre-dated the �ling of the instant complaint,
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Florida Foreclosure Standing- the Pooling and Servicing Agreement https://dewittlaw.com/foreclosure/8256/foreclosure-standing-pooling-ser...

the PSA could provide standing where the PSA

contained a loan schedule showing that all loans
were in the pool or trust prior to the closing date. In
other words, as long as the PSA seemed to indicate
that the loan in question was part of the PSA and
the closing date preceded the date of �ling the
complaint, the foreclosure plainti� established
standing. However, since the Marciano decision was
released appellate courts have expanded upon this
decision and established stricter requirements for
foreclosure plainti�s. In Friedle v. Bank of N.Y.
Mellon, 42 Fla. L. Weekly D1163 (Fla. 4th DCA May
24, 2017), the Fourth District Court of Appeal held
that even if the PSA was “admissible, it does not
assist in proving standing…[because the] bank did
not admit into evidence any certi�cation with
respect to this mortgage that the Trustee had
checked the �le and that all the loan documents
were present. Therefore, even if admissible, the PSA
does not provide evidence that this mortgage note
was within the possession of the Bank as Trustee.”
Id. The Friedle case indicates that the banks must
actually provide evidence that the mortgage in� How can I help you?
question was apart of the PSA or trust on the
closing date. Failing to do so, fails to prove standing.

Ultimately, the burden is on the party seeking

foreclosure to prove by substantial competent
evidence that it has standing. Elsman v. HSBC Bank
USA, 182 So. 3d 770, 771 (Fla. 5th DCA 2015).
Whether this is sought to be done through a
Pooling and Servicing Agreement or through some
other means, it will always be the Plainti�’s burden
to provide competent substantial evidence that it
maintained standing at the inception of the lawsuit.
Utilizing a pooling and servicing agreement does
not circumvent this standing requirement. While
many foreclosure Plainti�s will argue that the
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Florida Foreclosure Standing- the Pooling and Servicing Agreement https://dewittlaw.com/foreclosure/8256/foreclosure-standing-pooling-ser...

closing date in the PSA establishes standing, this is

not true unless there is further corroborating
evidence.

 Tags: POOLING AND SERVICING AGREEMENT

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