Mark Pennington v. Ocwen Loan Servicing, LLC, 151 So. 3d 52

In April 2007 Pennington executed a promissory note and mortgage on a condominium payable to E.Q. Financial, Inc.; MERS acted as nominee for E.Q. Financial.
The original note included an allonge making the note payable to Countrywide Home Loans, Inc., a special indorsement requiring Countrywide’s indorsement plus possession to negotiate the note.
In January 2009 MERS purported to transfer the mortgage and note to Ocwen without any Countrywide indorsement or assignment being produced.
Ocwen filed foreclosure on May 4, 2009; thereafter Ocwen assigned the loan to Freddie Mac and Freddie Mac later assigned the mortgage back to Ocwen—records showed the final re-assignment transferred only the mortgage, not the note.
Pennington repeatedly asserted the affirmative defense of lack of standing; the trial court nonetheless entered final judgment for Ocwen.
The First District reversed, holding Ocwen failed to prove standing to enforce the note either at filing or at judgment, and directed entry of judgment for Pennington.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ocwen had standing to enforce the note when the foreclosure was filed	Ocwen argued it was the owner/holder (including via affidavit of lost note) and thus had standing to foreclose	Pennington argued Ocwen never received Countrywide’s indorsement or other valid transfer of the note and so could not enforce it	Court held Ocwen failed to establish standing at the time suit was filed because the special indorsement to Countrywide was not produced and Ocwen lacked the required indorsement/possession
Whether Ocwen retained standing at time of final judgment	Ocwen relied on subsequent transfers and affidavits to show ownership at judgment	Pennington argued later assignments (including Freddie Mac’s re-assignment of only the mortgage) did not cure lack of note ownership and could even terminate Ocwen’s standing	Court held Ocwen also lacked standing at judgment—final assignment transferred only the mortgage and Ocwen was not shown to be the lawful owner of the note, so judgment must be reversed

Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308 (Fla. 2d DCA 2013) (methods to establish standing to foreclose)
Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011) (plaintiff must hold the note and mortgage to establish standing)
McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012) (affidavit of lost note can establish standing if executed before suit is filed)
Boumarate v. HSBC Bank USA, N.A., 109 So. 3d 1239 (Fla. 5th DCA 2013) (standing must exist at time of final judgment)
Beaumont v. Bank of New York Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012) (same)
Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903 (Fla. 1st DCA 2013) (loss of legal entitlement to the note extinguishes standing)