Chapter 4-1 Overview of Standing to Foreclose

• Jurisdiction: Florida

4-1 Overview of Standing to Foreclose

Perhaps no issue in mortgage foreclosure has been the subject of more litigation than standing to foreclose.¹

Standing to foreclose is examined by an analysis of whether the plaintiff is a "person entitled to enforce instrument" as defined by the Florida Uniform Commercial Code.² The "person entitled to enforce instrument" is defined as: (1) the holder of the instrument; (2) a non-holder in possession of the instrument who has the rights of a holder; or (3) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Fla. Stat. § 673.3091 or 673.4181(4).³ A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.⁴ A "holder" is "[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession."⁵

Standing to foreclose must be proven as of the time the action is filed and at the time judgment is entered.⁶ Lack of standing at the inception of the case is not a defect that can be...