Miller v. Kondaur Capital Corp.
Docket: No. 4D11-918
Court: District Court of Appeal of Florida; June 20, 2012; Florida; State Appellate Court
The order denying the appellants’ motion for relief from the final judgment of foreclosure is affirmed. The appellants assert a lack of standing; however, standing cannot be raised in a motion for relief from a final judgment if it was not asserted as an affirmative defense in the initial proceedings. In this case, the complaint was filed by the original payee and mortgagee, who assigned its interest to the appellee during the litigation, allowing the appellee to assume the role of the plaintiff/mortgagee. The appellants argue that the note was not properly endorsed, which would prevent the appellee from demonstrating that it was the holder entitled to enforce the note. Despite the original note lacking an endorsement, both the mortgage and note were assigned to the appellee via a recorded assignment, and the original note was submitted to the court. Consequently, the appellee is classified as a non-holder in possession of the instrument, which grants it the right to enforce it under Florida Statute 673.3011(2). Moreover, the appellants reference a copy of the note presented in the proceedings that appears to have an endorsement, contrasting with the original note filed, which lacks such an endorsement. While this discrepancy raises potential concerns about the authenticity of the document, it does not alter the substantive issues in the case. The court affirms the lower court's decision. Judges Stevenson and Gross concur.