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Establishing Standing

In yet another appellate treatment of the standing issue, the Fifth District in Kahn v. Bank of America, N.A., ___ So. 3d ___, 2011 WL 1326283 (Fla. 5th DCA 2011), reversed a summary judgment based on the lender’s failure to establish standing. Although Bank of America alleged that it was the holder of the note and mortgage, “… the copy of the note attached to the amended complaint contradicts that allegation.” Thus, this decision further confirms the principle that a paper trail documenting a plaintiff’s status as the party with the right to enforce the loan documents must be established in the complaint and its exhibits. Standing to contest a successful bidder’s purchase at a foreclosure sale was addressed Jagodinski v. Washington Mutual Bank, ___ So.3d ___, 2011 WL 1414088 (Fla. 1st DCA 2011). In that case, the losing bidder in the foreclosure sale alleged that the successful bidder failed to comply with the clerk’s instructions that the winner immediately post the required 5% deposit. The unsuccessful bidder also complained that the winner posted the deposit in a form other than cash or a cashier’s check. Nonetheless, the court held that the losing bidder lacked standing to complain of the winner’s non-compliance with the clerk’s requirements. In a strong dissent, Judge Wolf pointed out that the clerk’s action in accepting the winning bidder’s non-compliance constituted an “inequity in the sales procedure which placed him (the unsuccessful bidder) at a material disadvantage.” Id. (Wolf, J. dissenting)

“Foreclosures in Florida” was recently cited in appellate decisions.

One 79th Street Estates, Inc. v. American Investment Services, 47 So.3d 886, 889 n.4 (Fla. 3d DCA 2010); Aurora Loan Services LLC v. Senchuk, 36 So.3d 716, 722 (Fla. 1st DCA 2010). Kendall Coffey, Attorney At Law | Coffey Burlington, serving Miami, Florida