MARK PENNINGTON, Appellant, v. OCWEN LOAN SERVICING, LLC, Appellees.
CASE NO. 1D13-3072
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
November 6, 2014
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
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.
In April 2007, Pennington executed a promissory note and mortgage on his condominium. The note was “payable to order” under
In January 2009, MERS purported to transfer the mortgage and note to Ocwen. Countrywide was not involved. When Pennington failed to make payments,
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.
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 Countrywide to Ocwen. See
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.
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