Florida courts require that third parties prove standing when filing lawsuits. Merely having an affiant sign an affidavit without producing any documentation establishing the relationship to the original creditor will not suffice in Florida. Instead, Florida courts are looking for documentation establishing how the third party came into possession of the instrument.
In Lovette v. National Collegiate Student Loan Trust 2004-1 (“National Collegiate), National Collegiate sued the defendants who had executed a Bank One, N.A., student loan that National Collegiate had purchased. 149 So. 3d 735, 736 (Fla. 5th DCA 2014). National Collegiate’s complaint was very simple, alleging that:
(1) the defendants executed a promissory note;
(2) the defendants failed to make the required payments;
(3) National Collegiate owns the promissory note;
(4) National Collegiate accelerated the balance after nonpayment; and
(5) all conditions precedent had been met. Id.
The defendants filed a pro se answer denying the allegations to the complaint. Id. National Collegiate filed a motion for summary judgment and included an affidavit of account executed by a supervisor for its loan servicer. Id. The trial court granted National Collegiate’s motion for summary judgment and then the defendants retained counsel who filed a motion for rehearing, arguing that the trial court erred as National Collegiate failed to produce evidence that it owned the promissory note. Id. The trial court denied the Motion for Re-Hearing and an appeal followed.
The appellate court agreed with the defendants and held that “[t]o be entitled to summary final judgment, [National Collegiate] had the burden to ‘show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed.”’ Lovette, 149 So. 3d at 737(quoting McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 176 (Fla. 4th DCA 2012). The appellate court further added that “[b]ecause there is no evidence in the record at the time of the hearing regarding how [National Collegiate] acquired the note, summary final judgment was improper.
Third parties should be prepared to show how they acquired an instrument prior to filing lawsuits in Florida. While in many states it becomes the burden of the defendants to show that third parties do not have legal standing, Florida courts place this burden on the third parties. A Florida court will not automatically assume that a third party has standing merely because a third party claims it has standing.
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