POLEN, J.
Elston/Leetsdale, LLC (Elston) appeals the trial court's non-final order, requiring it to make payments to CWCapital Asset Management LLC, solely in its capacity as special servicer on behalf of U.S. Bank, N.A., successor to State Street Bank and Trust Company, as trustee for the Registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Mortgage Pass-Through Certificates, Series 2001-C1BC1 (CW) during the pendency of the action. Because CW did not properly plead standing, we reverse.
The facts are as follows. Elston executed a promissory note as evidence of a loan made by First Union National Bank; to
CW, the special servicer for the trust, filed a verified complaint, in its own name, for foreclosure. The complaint alleged that Elston defaulted on the loan, and the trust elected to accelerate and declare immediately due and owing the entire unpaid principal balance together with accrued interest. In response to CW's motions, the trial court ordered Elston to show cause as to why payments should not be made during the pendency of the foreclosure action. Elston then moved to dismiss the complaint, arguing that CW failed to properly allege standing to pursue enforcement of the security instruments. CW argued that it had standing to bring the foreclosure action because it is duly authorized by the trust to do so and, as special servicer for the loan, it is entitled to take all required action to protect the interests of the trust. After a hearing,
Elston argues that the trial court erred by ordering it to make payments to CW because CW failed to properly allege standing. CW argues that Elston has not furnished a sufficient record for this court to review the trial court's ruling.
"Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo." FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010) (quoting Westport Recovery Corp. v. Midas, 954 So.2d 750, 752 (Fla. 4th DCA 2007)).
Fla. R. Civ. P. 1.210(a). "In its broadest sense, standing is no more than having, or representing one who has, `a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.'" Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).
In the mortgage foreclosure context, "standing is broader than just actual ownership of the beneficial interest in the note." Mortgage Elec. Registration Sys.,
In securitization cases, a servicer may be considered a party in interest to commence legal action
In Juega v. Davidson, 8 So.3d 488 (Fla. 3d DCA 2009), relied on by the trial court, the Third District reversed an order of dismissal for lack of standing, finding that because the plaintiff was an agent who had been granted full authority to act for the real party in interest, there was no violation of rule 1.210(a). Id. at 489. However, in Juega, there was evidence in the trial court that the agent/plaintiff had been granted full authority to act on the real party in interest's behalf: The real party in interest filed an affidavit in opposition to the motion to dismiss for lack of standing, averring that Juega was pursuing the litigation for the real party in interest's benefit and ratifying all actions taken by Juega since the inception of the lawsuit. Id. at 489. Finding the affidavit filed by the real party in interest to be indistinguishable from the affidavit filed by the principal in Kumar, the Third District held that "
Here, the caption of the verified complaint states that the underlying action is brought by CW "solely in its capacity as special servicer on behalf of U.S. Bank, N.A." In the complaint, CW alleges, and verifies as true, that it "has been and is duly authorized by the Trust to prosecute this action as agent and special servicer for the Trust." However, CW did not file any evidence, affidavits or other documents, supporting its allegation that it was authorized to prosecute the action on behalf of the trust, as was done in Kumar, Juega and Chicago Properties. Although CW's complaint is verified, it is verified by the "SVP" for
We affirm on the other issue raised by Elston, as we find that the trial court properly determined that CW was not required to register as a commercial collection agency or as a licensed mortgage broker under Chapters 559 and 494, Florida Statutes.
Reversed and Remanded.
TAYLOR and HAZOURI, JJ., concur.