Last week the Second DCA decided an appeal challenging the bank’s standing to foreclose if the bank refiled a foreclosure case but left the original note on file with the county clerk of court.
Previously two opinions, Partridge v. Nationstar Mortgage, LLC, 224 So. 3d 839 (Fla. 2d DCA 2017) and Geweye v. Ventures Trust 2013-I-H-R, 189 So. 3d 231 (Fla. 2d DCA 2016) were often cited by foreclosure defense lawyers for the proposition that if a foreclosing bank surrenders the original note and mortgage to the clerk of court it somehow lost the standing to foreclose.
The 2nd DCA here distinguished those cases which actually revolved around the fact that bank A filed the prior foreclosure case, left the originals with the clerk of court, and bank/servicer B filed the second foreclosure case claiming it had the right to enforce the note. The issue n those cases was that there was only an assignment of mortgage from A to B, and no transfer of the note as the original was in the court file. Thus bank/servicer B did not have the standing to foreclose.
In this case, the 2nd DCA held: “Here, while the note did remain in the direct, physical possession of the Clerk in the case file of the Prior Foreclosure at the time of filing the second action, Deutsche Bank was the plaintiff in both actions. And because Deutsche Bank retained the power to exercise control over the note, it had the possession necessary to establish that it was a holder with standing to file the later foreclosure action.”
The 2nd DCA found that plaintiff retained constructive possession of the note while it is with the clerk of court since the plaintiff could retrieve the original note from the clerk of court at any time.