Mark Pennington v. Ocwen Loan Servicing, LLC

• Court: District Court of Appeal of Florida
• Decided: September 22, 2014
• Docket: 13-3072
• Status: Published

Opinion

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 September 16, 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 Stafford, for Appellees.

PER CURIAM.

Mark Pennington appeals the final summary judgment entered in favor of

Ocwen Loan Servicing, LLC in this mortgage foreclosure case. Because Ocwen failed to establish its standing to foreclose, or to refute Pennington’s affirmative

defense contesting standing, we reverse and remand for further proceedings.

In April 2007, Pennington executed a promissory note and mortgage on his

condominium. While the lender for the mortgage was E.Q. Financial, Inc.,

Mortgage Electronic Registrations Systems, Inc. (MERS) was acting as nominee

on behalf of E.Q. Financial. Attached to the note was an allonge 1 making the note

payable to Countrywide Home Loans, Inc.

In January 2009, MERS transferred the mortgage and note to Ocwen. The

transfer made no reference to the allonge or Countrywide. When Pennington failed

to make payments, Ocwen filed a complaint to foreclose the mortgage. However,

after filing the complaint Ocwen assigned the mortgage and note to Federal Home

Loan Mortgage Corporation (Freddie Mac), who eventually assigned it back to

Ocwen. In this final transfer, however, the assignment only referenced the

mortgage and did not purport to transfer the note.

Pennington’s answer to Ocwen’s complaint raised an affirmative defense of

lack of standing, arguing that Ocwen was not entitled to enforce the note. Ocwen

moved for summary judgment and during a subsequent hearing on the matter

1 “An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” Booker v. Sarasota, Inc., 707 So. 2d 886, 887 (Fla. 1st DCA 1998) (quoting Black’s Law Dictionary 76 (6th ed. 1990)). 2 Ocwen’s records custodian admitted that the final assignment from Freddie Mac to

Ocwen was only for the mortgage and not the note. Pennington moved for

involuntary dismissal based on lack of standing, which the trial court denied. At

the conclusion of the hearing, the trial court granted summary judgment for

Ocwen.

We review a trial court’s ruling on a motion for summary judgment de novo.

Chen v. Whitney Nat’l Bank, 65 So. 3d 1170, 1172 (Fla. 1st DCA 2011). Summary

judgment is proper where there are no genuine issues of material fact and the

moving party is entitled to a judgment as a matter of law. Id. The party seeking

summary judgment must also factually refute any affirmative defenses or establish

that they are legally insufficient. Id.

“To establish standing to foreclose, it must be demonstrated that the plaintiff

holds the note and mortgage in question.” Mazine v. M & I Bank, 67 So. 3d 1129,

1132 (Fla. 1st DCA 2011). In the instant case, Ocwen failed to demonstrate it had

standing to enforce the note. The allonge to the original note made it payable to

Countrywide. Ocwen failed to provide any documentation of an assignment of

Countrywide’s interest 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 not produced below. See Richards v.

HSNC Bank USA, 91 So. 3d 233, 235 (Fla. 5th DCA 2012) (reversing summary

3 judgment due to an inconsistency between an allonge to a promissory note and a

later assignment of the note).

Further, the final assignment from Freddie Mac to Ocwen was only for the

mortgage; Ocwen’s own records custodian admitted as much below.

Notwithstanding the lack of evidence to prove the Countrywide assignment, even

if Ocwen did have standing at the commencement of the suit, it would have lost

such standing when it no longer was legally entitled to own or enforce the note.

See Lindsey v. Wells Fargo Bank, N.A., 139 So. 3d 903 (Fla. 1st DCA 2013)

(reversing summary judgment for lack of standing because assignment was only

for the mortgage and not the note).

Accordingly, we reverse the Summary Final Judgment of Foreclosure and

remand for further proceedings.

REVERSED and REMANDED.

THOMAS, ROWE, and MAKAR, JJ., CONCUR.