IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MARK PENNINGTON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-3072
OCWEN LOAN SERVICING,
LLC,
Appellees.
_____________________________/
Opinion filed November 6, 2014.
An appeal from the Circuit Court for Duval County.
William A. Wilkes, Judge.
George Gingo and James E. Orth, Jr. of Gingo & Orth, P.A., Titusville, for
Appellant.
Curtis A. Wilson of McCalla Raymer, LLC, Tampa for Ocwen Loan Servicing,
LLC, David D. Rottmann, Jacksonville, for Windsor Falls Condominium
Association, Inc., Colleen Colton of Shapiro & Fishman, Boca Raton, Colin Paul-
Anthony Blackwood of McGlinchey St, for Appellees.
ON MOTION FOR CLARIFICATION
PER CURIAM.
We grant Appellant’s Motion for Clarification, withdraw our previous
opinion filed on September 16, 2014, and substitute the following opinion in its
place.
Appellant, Mark Pennington (“Pennington”), appeals the final judgment of
foreclosure against him and in favor of Appellee, Ocwen Loan Servicing, LLP
(“Ocwen”). Because Ocwen failed to establish its standing to foreclose, or to refute
Pennington’s affirmative defense contesting standing, we reverse and remand for
the trial court to enter judgment in favor of Pennington.
In April 2007, Pennington executed a promissory note and mortgage on his
condominium. The note was “payable to order” under section 673.1091, Florida
Statutes, because it specifically named E.Q. Financial, Inc., the lender, as payee. §
673.1091, Fla. Stat. (“A promise or order that is payable to order is payable to the
identified person.”). Mortgage Electronic Registrations Systems, Inc. (MERS)
acted as nominee on behalf of E.Q. Financial. The note did not have any
indorsements, but attached to the note was an allonge, which made the note
payable to Countrywide Home Loans, Inc. The allonge was a special indorsement
because it named a specific payee: Countrywide. See § 673.2051(1), Fla. Stat. As
such, negotiation of the note required both possession and an indorsement by
Countrywide. Id. (A specially indorsed negotiable instrument “becomes payable to
the identical person and may be negotiated only by the indorsement of that
person.”).
In January 2009, MERS purported to transfer the mortgage and note to
Ocwen. Countywide was not involved. When Pennington failed to make payments,
2
Ocwen filed a May 4, 2009 complaint, initiating foreclosure proceedings against
him. After the filing of the complaint, Ocwen assigned the note and mortgage to
Federal Home Loan Mortgage Corporation (Freddie Mac), who eventually
assigned it back to Ocwen. This final re-assignment back to Ocwen failed to
transfer the note.
Throughout his pleadings, as well as at trial, Pennington asserted the
affirmative defense of lack of standing, arguing that Ocwen was not entitled to
enforce the note. Ultimately, however, the trial court entered the instant order in
favor of Ocwen.
We review the sufficiency of the evidence to prove standing to bring a
foreclosure action de novo. Lacombe v. Deutsche Bank Nat’l Trust Co., 2014 WL
5139296 (Fla. 1st DCA Oct. 14, 2014). A plaintiff who is not the original lender
may establish standing to foreclose by submitting a note with a blank or special
indorsement, an assignment of the note, or an affidavit otherwise proving his status
as holder of the note. Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla.
2d DCA 2013); see also Mazine v. M & I Bank, 67 So. 3d 1129, 1132 (Fla. 1st
DCA 2011) (“To establish standing to foreclose, it must be demonstrated that the
plaintiff holds the note and mortgage in question.”). Standing must be established
at the time of the filing of the foreclosure action. Focht, 124 So. 3d at 310.
Additionally, a bank must also have standing at the time final judgment is entered.
3
See Boumarate v. HSBC Bank USA, N.A., 109 So. 3d 1239, 1239 (Fla. 5th DCA
2013); Beaumont v. Bank of New York Mellon, 81 So. 3d 553, 555 (Fla. 5th DCA
2012).
In this case, Ocwen failed to demonstrate it had standing to enforce the note.
Its exhibits did not qualify as an indorsement from Countrywide to Ocwen or as an
assignment from Countrywide to Ocwen (while Ocwen submitted a copy of a letter
it had written to Pennington informing him of an assignment from Countrywide to
Ocwen, the actual assignment itself was never produced). And while Ocwen filed
an affidavit of lost note alleging it was the lawful owner of the note so as to
establish standing at the time the lawsuit was filed, see McLean v. JP Morgan
Chase Bank Nat’l Ass’n, 79 So. 3d 170, 174 (Fla. 4th DCA 2012) (“[I[f the
affidavit itself is executed before the lawsuit is filed, the allegation that the plaintiff
is the ‘owner and holder of the note’ is sufficient to establish the plaintiff’s
standing at the inception of the lawsuit[]”), that affidavit was a nullity since
negotiation of the note required not only possession, but an indorsement from
Countywide to Ocwen. See § 673.2051(1), Fla. Stat. But such was lacking here.
Likewise, the record contains no proof by Ocwen that it had standing under any of
the means established by section 673.3011, Florida Statutes. See Mazine, 67 So. 3d
at 1130. Because Ocwen failed to establish standing either at the time of filing the
4
suit or at the time of judgment, the trial court should have granted Pennington’s
motion for involuntary dismissal for lack of standing.
While this issue is dispositive, we also note that Ocwen’s problems were
further compounded when the final assignment from Freddie Mac to Ocwen was
only for the mortgage; Ocwen’s own records custodian admitted this below.
Notwithstanding the lack of evidence to prove the Countrywide assignment, even
if Ocwen had standing at the commencement of the suit, it would have lost such
standing when it was no longer legally entitled to own or enforce the note. See
Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903 (Fla. 1st DCA 2013).
Accordingly, we REVERSE the judgment below, and direct the trial court to
enter final judgment for Pennington.
REVERSED.
THOMAS, ROWE, and MAKAR, JJ., CONCUR.
5