DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LESLINE RUSSELL,

Appellant,

v.

BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME 

LOANS SERVICING LP,

Appellee.

No. 4D16-3908

[February 28, 2018]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE10021416.

Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.

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

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

ON MOTION FOR REHEARING 

LEVINE, J.

We deny appellee’s motion for rehearing, but withdraw our previously 

issued opinion and substitute the following in its place. 

Appellant appeals a final judgment of foreclosure following summary 

judgment. Appellant argues that a genuine issue of material fact existed 

as to standing at the inception of the action because the endorsement on 

the note attached to the complaint was different than the endorsements 

on the original note filed with the court. We agree that a genuine issue of 

material fact existed and therefore we reverse. 
2

BAC Home Loans Servicing1 filed a complaint for mortgage foreclosure 

against appellant. A copy of the note attached to the complaint 

contained an undated endorsement in blank by Q Lending, the lender 

named in the note. A copy of the note attached to the amended 

complaint contained an undated specific endorsement by Q Lending to 

Taylor, Bean & Whitaker Mortgage Corp. as well as an undated 

endorsement in blank by Taylor, Bean & Whitaker. 

Appellant filed an answer and affirmative defenses, raising lack of 

standing and pointing out the discrepancy in the endorsements.

Carrington Mortgage Services, LLC, was substituted as party plaintiff 

and moved for summary judgment. In support of its motion, Carrington 

submitted an affidavit from Bank of America’s assistant vice president 

stating that Bank of America had physical possession of the note 

endorsed in blank by Taylor, Bean & Whitaker as of May 19, 2010, the 

date the foreclosure action was filed. A screenshot accompanying the 

affidavit showed that Bank of America received the note on September 

26, 2009. A second screenshot purported to show that the version of the 

note with two endorsements was scanned into Bank of America’s system 

on December 18, 2009. 

The trial court granted summary judgment and entered a final 

judgment in favor of Carrington. 

Whether a party has standing to bring an action is reviewed de novo. 

Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 

2014). An order granting summary judgment is also reviewed de novo. 

Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 479 (Fla. 4th DCA 

2006). 

“[A] party moving for summary judgment must show conclusively the 

absence of any genuine issue of material fact, and the court must draw 

every possible inference in favor of the party against whom a summary 

judgment is sought.” Id. at 479-80. “The burden is initially on the 

movant. Only where the movant tenders competent evidence in support 

of his motion does the burden shift to the other party to come forward 

with opposing evidence.” Id. at 480. 

1 BAC later merged into Bank of America, N.A. 
3

“[S]ummary judgment should not be granted unless the facts are so 

crystallized that nothing remains but questions of law.” Id. If the 

evidence is conflicting, permits different reasonable inferences, or tends 

to prove the issues, it should be submitted to the trier of fact. Darwiche 

v. Bank of N.Y. Mellon, 185 So. 3d 1261, 1262 (Fla. 4th DCA 2016). “If 

the ‘slightest doubt’ exists, then summary judgment must be reversed.” 

Id. (citation omitted). 

“A crucial element in any mortgage foreclosure proceeding is that the 

party seeking foreclosure must demonstrate that it has standing to 

foreclose” at the time the complaint is filed. McLean v. JP Morgan Chase 

Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). “[S]tanding 

may be established from a plaintiff’s status as the note holder, regardless 

of any recorded assignments.” Id. “If the note does not name the 

plaintiff as the payee, the note must bear a special endorsement in favor 

of the plaintiff or a blank endorsement. Alternatively, the plaintiff may 

submit evidence of an assignment from the payee to the plaintiff or an 

affidavit of ownership to prove its status as a holder of the note.” Id.

(citations omitted). “[I]f the plaintiff relies upon an affidavit of ownership 

to prove its status as a holder of the note on the date the lawsuit was 

filed, it is sufficient if the body of the affidavit indicates that the plaintiff 

was the owner of the note and mortgage before suit was filed.” Id. at 

174. 

BAC’s possession of the endorsed note was insufficient to conclusively 

establish standing at the time BAC filed the complaint. The copy of the 

note attached to the original complaint contained an undated 

endorsement in blank by Q Landing. However, the copy of the note 

attached to the amended complaint, as well as the original note, 

contained an undated specific endorsement by Q Lending to Taylor, Bean 

& Whitaker who, in turn, executed an endorsement in blank. Because 

only the holder of a note may convert a blank endorsement to a special 

endorsement, this suggests that Taylor, Bean & Whitaker—and not 

BAC—possessed the original note at the time BAC filed the complaint 

and that Taylor, Bean & Whitaker executed a special endorsement as the 

holder of the note after BAC filed the complaint. See § 678.3041, Fla. 

Stat. (2016) (“A holder may convert a blank indorsement to a special 

indorsement.”). 

Additionally, the affidavit was insufficient to establish BAC’s standing. 

Floyd v. Bank of America, N.A., 194 So. 3d 1071 (Fla. 5th DCA 2016), is 

instructive. In Floyd, the Fifth District found that the bank’s affidavit 

was insufficient to establish standing because it did not resolve all the 

material issues in the case. The affidavit in Floyd did not offer any 
4

explanation of why a blank endorsement appeared on the note filed at 

the hearing but not on the copy filed with the complaint. Therefore, a 

material issue remained as to when the note was endorsed and how the 

bank obtained standing. 

Similarly, the affidavit in the instant case did not resolve the 

inconsistency between the copy of the note attached to the original 

complaint and the note attached to the amended complaint and filed 

with the court in support of summary judgment. The affidavit did not 

offer any explanation as to why a blank endorsement by Taylor, Bean & 

Whitaker Mortgage Corp. appeared on the note filed in support of 

summary judgment but a blank endorsement by Q Lending appeared on 

the copy of the note filed with the original complaint. Like in Floyd, a 

material issue remained as to when the note was endorsed and how BAC 

obtained standing. 

In sum, a genuine issue of material fact remained as to whether BAC 

had standing when it filed the complaint. As such, we reverse the entry 

of summary judgment and remand for further proceedings. 

Reversed and remanded for further proceedings. 

FORST and KUNTZ, JJ., concur.