DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROBERTO D. VIEIRA a/k/a ROBERTO VIEIRA and

SHAWN D. VIEIRA a/k/a SHAWN VIEIRA,

Appellants,

v.

PENNYMAC CORP. and

THE TIMBERS OF BOCA HOMEOWNERS ASSOCIATION, INC.,

Appellees.

No. 4D16-3430

[March 21, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Susan R. Lubitz, Senior Judge; L.T. Case No. 50-2015-CA001150 AW.

Kendrick Almaguer, Thomas Eross, Jr., and Kyle M. Costello of The 

Ticktin Law Group, PLLC, Deerfield Beach, for appellants.

Nancy W. Wallace of Akerman LLP, Tallahassee, and William P. Heller 

and Henry H. Bolz of Akerman LLP, Fort Lauderdale, for appellee 

PennyMac Corp.

CONNER, J.

Roberto D. Vieira and Shawn D. Vieira (“the Borrowers”) appeal the final 

judgment of foreclosure in favor of PennyMac Corp (“PennyMac”) asserting 

the trial court erred by (1) determining PennyMac had standing to enforce 

a lost note, and (2) rejecting their attempt to amend pleadings to conform 

to the evidence. Because we agree with the Borrowers’ first contention, we 

do not address the second contention. We agree that PennyMac failed to 

prove at trial that the initial plaintiff had standing to enforce the note. We 

reverse the final judgment and remand for the trial court to enter judgment 

in favor of the Borrowers.

Background

In January 2015, JP Morgan Chase Bank, National Association (“JP 

Morgan”) filed the initial complaint in this case, seeking to foreclose on a 
2

note and mortgage given by the Borrowers to Chase Bank USA, N.A. 

(“Chase Bank”), the original lender. The complaint also sought to reestablish the lost note secured by the mortgage. JP Morgan asserted that 

although the note was lost, it was entitled to enforce the instrument 

pursuant to section 673.3091, Florida Statutes (2017). Attached to the 

complaint was a copy of the note and mortgage. The complaint alleged in 

part that “Plaintiff will establish the terms and conditions of the subject 

note in addition to its right to enforce. A lost note affidavit is attached 

hereto as Exhibit ‘A.’” The body of the three-page complaint made no 

reference to Chase Bank.

The lost note affidavit attached to the complaint stated, in part:

A copy of the original note and, if applicable, allonge(s) is/are 

attached hereto as Exhibit A.

The copy does not display endorsements.

(emphasis added). Exhibit A attached to the lost note affidavit included a 

copy of the note, but no copy of an allonge was attached.

The Borrowers eventually filed an answer, asserting that JPMorgan 

lacked standing and failed to fulfill conditions precedent. Subsequently, 

JP Morgan moved to substitute PennyMac as plaintiff and to change the 

case style, alleging that JP Morgan assigned the mortgage to PennyMac

after the suit was filed, attaching a copy of the recorded assignment. The 

assignment only transferred the mortgage and not the note. An order was 

entered substituting PennyMac as the plaintiff.

At trial, PennyMac called two witnesses; one a JP Morgan employee and

the other a PennyMac employee. We summarize the testimony that is most 

pertinent to disposition of this appeal.

The JP Morgan witness testified that Chase Bank was the first loan 

servicer, JP Morgan was the second servicer, and PennyMac was the 

current servicer. She testified that the Borrowers were given a notice of 

assignment, sale and transfer of servicing rights from Chase Bank to 

JPMorgan. She further testified about the process JP Morgan followed

regarding a search for a lost note. According to the witness, JPMorgan 

was in possession of the note because there was an imaged copy that was 

uploaded during JP Morgan’s servicing of the loan, though she did not 

recall the specific date of the upload, believing it to be around 2010. 

Additionally she testified that after reviewing JP Morgan’s records and 

Chase Bank’s records, nothing led her to believe that the note could be 
3

reasonably located. She admitted that she did not know the exact date 

the note was lost.

Through the JP Morgan witness, PennyMac introduced into evidence 

the original lost note affidavit, a copy of which was attached to the 

complaint. According to the witness, the affidavit was executed in 

September 2014 (four months before the complaint was filed). Unlike the 

copy of the affidavit attached to the complaint, the original affidavit had 

an original allonge attached to it, stating:

This Allonge is being prepared to evidence the transfer and 

assignment of ownership of that certain Mortgage Note 

described above, which was executed in favor of CHASE BANK 

USA, NA, to the below-named Purchaser. The original of the 

Mortgage Note has been lost or misplaced by the below-named 

seller. A copy of the fully-executed Mortgage Note is attached 

to that certain Lost Note affidavit dated SEPTEMBER 18, 2014 

executed by the Seller.

The allonge was undated and contained a signature by a JP Morgan

representative, but no signature by a Chase Bank representative. The JP 

Morgan witness could not say when the allonge was executed or when it

was imaged into any system.

Through the JP Morgan witness, PennyMac also introduced into 

evidence the assignment of mortgage from JP Morgan to PennyMac.

PennyMac’s witness testified that when PennyMac acquired servicing 

rights, the prior servicer, JP Morgan, sent all loan records. She further 

testified that the Borrowers’ loan was part of a Purchase of Servicing 

Agreement (“PSA”), which governed how PennyMac serviced the loan. The 

PSA indicated that the Borrowers’ loan was part of a pool of loans for which 

PennyMac purchased the servicing rights from JP Morgan in January 

2015. 

At the conclusion of the evidence, the trial court denied the Borrowers’ 

motion for involuntary dismissal on the issue of standing. A final 

judgment was entered against the Borrowers, after which the Borrowers 

gave notice of appeal.

Analysis

The standard of review of whether the trial court’s factual findings are 

legally sufficient to establish standing is a question of law subject to de 

novo review. Elman v. U.S. Bank, N.A., 204 So. 3d 452, 454 (Fla. 4th DCA 
4

2016). A trial court’s factual findings are reviewed for competent 

substantial evidence. Id. at 455; Jasser v. Saadeh, 91 So. 3d 883, 884 

(Fla. 4th DCA 2012) (quoting Acoustic Innovations, Inc. v. Schafer, 976 So. 

2d 1139, 1143 (Fla. 4th DCA 2008)) (reciting that judgment entered after 

a nonjury trial is reviewed for competent, substantial evidence). “When 

reviewing a judgment rendered after a nonjury trial, the trial court’s 

findings of fact come to the appellate court with a presumption of 

correctness and will not be disturbed unless they are clearly erroneous.” 

State Tr. Realty, LLC v. Deutsche Bank Nat’l Tr. Co. Ams., 207 So. 3d 923, 

925 (Fla. 4th DCA 2016) (quoting Stone v. BankUnited, 115 So. 3d 411, 

412 (Fla. 2d DCA 2013)).

Because it was substituted as plaintiff after suit was filed, PennyMac

had to prove at trial that JP Morgan had standing when the initial 

complaint was filed, as well as its own standing when the final judgment 

was entered. Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1040 (Fla. 

4th DCA 2015). Throughout the proceedings below, the note was lost. 

Thus, PennyMac had to prove standing and the right to enforce the note, 

using section 673.3091, Fla. Stat. (2017). Section 673.3091(1)(a), requires 

in part that “[t]he person seeking to enforce the instrument was entitled to 

enforce the instrument when loss of possession occurred, or has directly or 

indirectly acquired ownership of the instrument from a person who was 

entitled to enforce the instrument when loss of possession occurred.” 

(emphasis added).

Standing may be established by possession of the note specially 

indorsed to the plaintiff or indorsed in blank. Peoples v. Sami II Tr. 2006-

AR6, 178 So. 3d 67, 69 (Fla. 4th DCA 2015); § 673.2031(1), Fla. Stat. 

(2017) (“An instrument is transferred when it is delivered by a person other 

than its issuer for the purpose of giving to the person receiving delivery the 

right to enforce the instrument.”); § 673.2031(2), Fla. Stat. (“Transfer of an 

instrument, whether or not the transfer is a negotiation, vests in the 

transferee any right of the transferor to enforce the instrument, including 

any right as a holder in due course . . . .”). A plaintiff may also prove 

standing “through evidence of a valid assignment, proof of purchase of the 

debt, or evidence of an effective transfer.” Stone, 115 So. 3d at 413

(quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 

So. 3d 936, 939 (Fla. 2d DCA 2010)). That is because “if an instrument is 

transferred for value and the transferee does not become a holder because 

of lack of indorsement by the transferor, the transferee has a specifically 

enforceable right to the unqualified indorsement of the transferor . . . .” §

673.2031(3), Fla. Stat. 
5

In this case, the original lender and payee of the note was Chase Bank. 

Although the parties make various arguments and counter-arguments 

regarding standing, we perceive the critical issue to be whether sufficient 

proof was presented at trial to show that Chase Bank transferred the note 

to JP Morgan, the original plaintiff, prior to suit being filed.

The Borrowers contend on appeal that PennyMac failed to prove that 

JP Morgan had standing to foreclose when it filed suit. More specifically, 

the Borrowers argue that PennyMac did not produce substantial 

competent evidence that JP Morgan was in possession of the allonge at the 

inception of the case. They point out that the allonge was not attached to 

the complaint when it was filed; instead, the allonge appeared at trial with 

no dates of creation on its face. Moreover, PennyMac’s witness could not 

offer evidence that the allonge was created or executed prior to the filing 

of the complaint.

Additionally, the Borrowers argue there was no proof of transfer of the 

note from Chase Bank to JP Morgan. The allonge did not contain an 

indorsement from Chase Bank, and it was not signed by a representative 

of Chase Bank. The assignment of mortgage entered into evidence only 

transferred the mortgage and not the note. The Borrowers also assert that 

the notice of transfer or sale of servicing rights was not an effective transfer 

of the note.

Addressing the issue of standing at the inception of the suit, PennyMac

contends on appeal that it presented sufficient evidence to prove that JP 

Morgan’s authority to enforce the note derived from its status as a nonholder in possession of the note with the rights of a holder at the time of 

the loss. PennyMac acknowledges that its contention is based on “multitiered evidence” of transfer of the note by Chase Bank. It begins the 

analysis with the assertion that the evidence showed that Chase Bank and 

JP Morgan are “related entities.” PennyMac argues that the allonge 

memorialized the transfer of the note from Chase Bank to JP Morgan. It 

further asserts that to agree with the Borrowers’ position would require 

the absurd inference that JP Morgan made a six-figure sale of the note to 

PennyMac without authority from Chase Bank, a related entity that used

the same address in the public records.

Additionally, PennyMac argues that despite case law to the contrary, 

the assignment of the mortgage alone, without the inclusion of the note, 

bolsters the proof that JP Morgan had standing at the inception of the suit. 

For this argument, PennyMac relies on section 701.01, Florida Statutes 

(2017). Finally, PennyMac argues that the evidence of escrow advances 

corroborate JP Morgan’s standing.
6

However, there are problems with PennyMac’s “multi-tiered evidence” 

arguments. First, it is unclear in what way Chase Bank and JP Morgan 

are “related entities.” No evidence was presented that JP Morgan and 

Chase Bank merged or that Chase Bank was completely bought out by JP 

Morgan. As we have made clear in the past, separate corporate entities, 

even parent and subsidiary entities, are legally distinct entities. See 

Wright v. JPMorgan Chase Bank, N.A., 169 So. 3d 251, 251–52 (Fla. 4th 

DCA 2015) (noting a parent corporation and its wholly-owned subsidiary 

are separate and distinct legal entities and a parent corporation cannot 

exercise the rights of the subsidiary corporation); see also Houk v. 

PennyMac Corp., 210 So. 3d 726, 734 (Fla. 2d DCA 2017) (noting a conflict 

of allegations between affidavits and the complaint where the affidavits 

alleged PennyMac Loan Services, LLC was the servicer and the complaint 

alleged PennyMac Corp. was the servicer). There was no explicit testimony 

or other evidence that Chase Bank sold or equitably transferred the note 

to JP Morgan.

Additionally, PennyMac cites no case law in support of its argument 

that the assignment of mortgage (without an assignment of the note) 

bolsters the proof that JP Morgan had standing at the inception of the suit. 

Instead, PennyMac cites to section 701.01, which provides:

Any mortgagee may assign and transfer any mortgage made 

to her or him, and the person to whom any mortgage may be 

assigned or transferred may also assign and transfer it, and 

that person or her or his assigns or subsequent assignees may 

lawfully have, take and pursue the same means and remedies 

which the mortgagee may lawfully have, take or pursue for the 

foreclosure of a mortgage and for the recovery of the money 

secured thereby.

(emphases added). However, although the statute makes clear that an 

assignee has the “same means and remedies the mortgagee may lawfully 

have,” we have previously held that “[t]he mortgage follows the assignment 

of the promissory note, but an assignment of the mortgage without an 

assignment of the debt creates no right in the assignee.” Tilus v. AS Michai 

LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) (citing Bristol v. Wells 

Fargo Bank, Nat’l Ass’n, 137 So. 3d 1130, 1133 (Fla. 4th DCA 2014)); see 

also Lamb, 174 So. 3d at 1041 (“A bank does not have standing to foreclose 

where it relies on an assignment of the mortgage only.”). Therefore, we 

disagree with PennyMac’s assertion that the assignment of mortgage 

alone, without a transfer of the note, establishes that JP Morgan had 

standing at the inception of the suit.
7

PennyMac’s argument that the allonge memorialized the transfer of the 

note from Chase Bank to JP Morgan reveals the biggest flaw in PennyMac’s 

contention that JP Morgan had standing at the inception of the suit. The 

major stumbling block is that the allonge was signed by a representative 

of JP Morgan, and there is no signature on the document by Chase Bank. 

Section 673.2041, Florida Statutes (2017), clearly requires a signature by 

the current note holder to constitute an indorsement and transfer of the 

note to another payee or bearer. § 673.2041, Fla. Stat. (“The term 

‘indorsement’ means a signature . . . for the purpose of negotiating the 

instrument [or] restricting payment of the instrument.”). We have 

previously said, “[t]o transfer a note, there must be an indorsement, which 

itself must be ‘on [the] instrument’ or on ‘a paper affixed to the 

instrument.’” Jelic v. BAC Home Loans Servicing, LP, 178 So. 3d 523, 525 

(Fla. 4th DCA 2015)(second alteration in original)(emphasis 

added)(quoting § 673.2041(1), Fla. Stat.). 

Next, in support of its argument that evidence of escrow advances 

corroborates JP Morgan’s standing, PennyMac cites Peuguero v. Bank of 

America, N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015), where we said that a 

foreclosure plaintiff paying taxes and fees associated with the mortgaged 

property prior to suit is “a noteworthy factor in determining standing, as 

financial institutions are not known to incur expenses on behalf of 

properties for which they do not hold an interest.” Id. at 1202. However, 

our statement was in the context of facts where the lender originating the 

loan signed an indorsement to Countrywide Bank, the entity which filed 

the foreclosure suit. Id. at 1200. After suit was filed, Bank of America 

was substituted as plaintiff on the contention that Countrywide Bank 

merged into Bank of America. Id. In other words, we viewed the evidence 

of advanced fees as corroboration of more direct evidence of transfer of the 

note. Id. at 1202. We never held that such evidence, standing alone, 

would be sufficient to establish standing. In this case, there is no other 

more direct evidence of a transfer of the note for the evidence of the escrow 

advances to corroborate.

Finally, the remaining testimonial and documentary “multi-tiered 

evidence” discussed in PennyMac’s brief does not demonstrate that JP 

Morgan had standing at the inception of the suit. As discussed above, 

neither of PennyMac’s witnesses directly testified about the transfer of the 

note from Chase Bank to JP Morgan. Instead, the witness testimony 

referred a few times to Chase Bank and JP Morgan as “Chase entities.” 

Likewise, the notice of sale and transfer of servicing rights, loan acquisition 

screenshots, and lost note affidavit do not constitute direct or 

circumstantial evidence of the transfer of the note from Chase Bank to JP 

Morgan. 
8

Although we agree with PennyMac that the evidence proved that JP 

Morgan had possession of the note when the note was lost and prior to 

suit being filed, PennyMac failed to prove that prior to suit, Chase Bank 

had indorsed the note over to JP Morgan. Thus, we conclude that 

PennyMac failed to prove that JP Morgan had standing at the inception of 

the suit. Therefore, we reverse the final judgment in favor of PennyMac

and direct the trial court to enter a judgment in favor of the Borrowers.

Reversed and remanded.

WARNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.