MARK PENNINGTON,

Appellant,

v.

OCWEN LOAN SERVICING, 

LLC,

Appellees.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D13-3072

_____________________________/

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 PaulAnthony 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 allonge1 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 

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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.

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