NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

LINDA L. SHAFFER, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-4205 

 ) 

DEUTSCHE BANK NATIONAL TRUST, ) 

AS INDENTURE TRUSTEE FOR ) 

AMERICAN HOME MORTGAGE ) 

INVESTMENT TRUST 2006-1, ) 

MORTGAGE BACKED NOTES, ) 

SERIES 2006-1, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed April 19, 2017. 

Appeal from the Circuit Court for Manatee 

County; George K. Brown, Jr., Senior Judge.

Jacqulyn Mack of The Mack Law Firm, 

Englewood, for Appellant. 

Kimberly S. Mello and Jonathan S. 

Tannen of Greenberg Traurig, P.A., 

Tampa, and Patrick G. Broderick of 

Greenberg Traurig, P.A., West Palm 

Beach, for Appellee. 

ROTHSTEIN-YOUAKIM, Judge. 
- 2 - 

 Linda L. Shaffer appeals from a final judgment of foreclosure, arguing, 

among other things, that Deutsche Bank National Trust, as Indenture Trustee for 

American Home Mortgage Investment Trust 2006-1, Mortgage Backed Notes, Series 

2006-1 (the Bank), lacked standing to foreclose. Because we agree that the Bank failed 

to prove that it had standing at the inception of the suit, we reverse.1

 In September 2009, the Bank filed a complaint against Shaffer for 

mortgage foreclosure and to reestablish a lost note. Along with the complaint, the Bank 

filed a copy of the May 2009 assignment of the mortgage to the Bank from Mortgage 

Electronic Registration Systems, Inc., as nominee for the original lender, American 

Home Mortgage Acceptance Inc. (AHMAI). Before trial, however, the Bank filed with 

the court the original note and voluntarily dismissed the lost-note count. The note, 

which was dated September 21, 2005, identified AHMAI as the payee and bore an 

undated indorsement in blank. 

 At trial, Shannon Fretwell, a loan analyst for Ocwen, the note servicer, 

testified regarding Ocwen's boarding process and the documents that Ocwen had 

received from the previous servicer. One of those documents was a limited power of 

attorney (LPOA), effective July 2009, between the Bank and prior servicer American 

Home Mortgage Servicing, Inc. (AHMSI). The LPOA authorized AHMSI to act on behalf 

of the Bank in connection with, among other things, American Home Mortgage 

Investment Trust 2006-1, which, according to an exhibit attached to the LPOA, was 

dated March 29, 2006. 

 

 1Because we conclude that reversal is warranted on this ground, we 

decline to address Shaffer's other challenges to the judgment. 
- 3 - 

 Based on her review of the LPOA, Fretwell testified that the loan had been 

transferred into the trust on March 29, 2006. She subsequently explained that, by 

"loan," she meant "note," and by "transferred," she meant that the note had been made 

"a party of the trust," i.e., the trust had "owned" it. We note, however, that nothing in the 

LPOA—or in any other document admitted at trial—establishes what American Home 

Mortgage Investment Trust 2006-1 comprised, and Fretwell did not indicate the basis for 

her testimony that the note itself had been transferred into the trust.2 We also note, 

however, that Shaffer did not cross-examine her on that point despite having the 

opportunity to do so. 

 Regardless, even accepting Fretwell's testimony that the note itself was 

transferred into the trust on March 29, 2006, there is no evidence establishing what 

interest in the note AHMAI transferred to the Bank as trustee. There is no evidence 

establishing when the blank indorsement had been placed on the note, and the Bank 

did not properly introduce a copy of the Pooling and Servicing Agreement (PSA) 

establishing the duties, rights, and obligations of the parties to the trust.3

 2The LPOA indicated that the trusts covered by its terms could include 

mortgages, deeds of trust, retail installment contracts, or promissory notes. 

3Before trial, the Bank requested that the trial court take judicial notice of a 

partial copy of a PSA relating to the applicable trust. However, this PSA—a document 

personal to one of the parties—was not subject to judicial notice under either section 

90.201 or section 90.202, Florida Statutes (2014). Moreover, the unauthenticated PSA 

was simply attached to a notice of filing and was, therefore, inadmissible at trial without 

further testimony. See, e.g., BAC Funding Consortium Inc. ISAOA/ATIMA v. JeanJacques, 28 So. 3d 936, 939 (Fla. 2d DCA 2010) (noting that an unauthenticated 

document attached as an exhibit to a motion did not constitute admissible evidence); 

Ciolli v. City of Palm Bay, 59 So. 3d 295, 297 (Fla. 5th DCA 2011) (noting that an 

unauthenticated document attached to a memorandum of law does not constitute 

competent evidence); Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (noting 

that an unauthenticated letter attached as an exhibit to a motion was not admissible and 
- 4 - 

 "[E]vidence that the note was transferred into the trust prior to the 

foreclosure action is insufficient by itself to confer standing because there [is] no 

evidence that the indorsee had the intent to transfer any interest to the trustee." Balch 

v. LaSalle Bank N.A., 171 So. 3d 207, 209 (Fla. 4th DCA 2015); see also Jarvis v. 

Deutsche Bank Nat'l Tr. Co., 169 So. 3d 194, 196 (Fla. 4th DCA 2015) ("[E]vidence that 

the note was physically transferred into a trust prior to Deutsche Bank filing its 

foreclosure complaint does not, by itself, establish standing."). Absent any evidence 

establishing the interest that AHMAI conveyed to the Bank when transferring the note 

into the trust, we conclude that the Bank failed to establish standing, and we reverse 

and remand with instructions for the trial court to enter an involuntary dismissal. 

 Reversed and remanded. 

SILBERMAN, J., Concurs. 

VILLANTI, C.J., Concurs specially with opinion. 

 

 

not properly before the court). Because the PSA was not subject to judicial notice and 

because the Bank took no steps to authenticate it or introduce it into evidence at trial, 

the PSA was not properly before the court and cannot constitute evidence of the Bank's 

standing. 
- 5 - 

VILLANTI, Chief Judge, Concurring specially. 

 I concur in the majority's decision to reverse the final judgment of 

foreclosure. I write separately to note that while I agree that Deutsche Bank's evidence 

was legally insufficient to establish its standing to foreclose, I do not agree with all the 

reasons identified by the majority. I also write to express my concerns with several 

aspects of current foreclosure practice and to suggest ways to alleviate them. 

 The record in this case shows that Deutsche Bank filed its unverified 

foreclosure complaint on September 29, 2009. Attached to the complaint were a copy 

of the Shaffer mortgage in favor of American Home Mortgage Acceptance, Inc. 

(AHMAI), and a copy of a May 1, 2009, assignment of the mortgage to Deutsche Bank 

from MERS. No copy of the promissory note was attached to the complaint. Several 

months later, on February 5, 2010, Deutsche Bank filed the original promissory note, 

which was in favor of AHMAI and which was endorsed in blank. Importantly, the 

endorsement in blank was undated. 

 Apparently recognizing that the undated blank endorsement on the note 

was insufficient to establish its standing to foreclose, Deutsche Bank offered at trial the 

testimony of Shannon Fretwell, a loan analyst for Ocwen Financial Corporation, which 

was the current servicer of the Shaffer mortgage. Through Fretwell, Deutsche Bank 

offered evidence that Ocwen was the successor by merger to the original loan servicer, 

American Home Mortgage Servicing, Inc. (AHMSI). Also through Fretwell, Deutsche 

Bank introduced a copy of a limited power of attorney (LPOA) that authorized AHMSI to 

act on behalf of Deutsche Bank in, among other matters, foreclosure litigation relating to 

notes and mortgages held by Deutsche Bank in its capacity as trustee of a number of 
- 6 - 

asset and investment trusts. Fretwell testified that the LPOA established that the 

Shaffer loan became part of the American Home Mortgage Investment Trust 2006-1, 

Mortgage Backed Notes, Series 2006-1 (the trust) on March 29, 2006; however, she 

admitted that her testimony was based solely on her review of the LPOA and not any 

independent knowledge that she had of the note or the transaction. 

 Unfortunately for Deutsche Bank, a review of the LPOA does not support 

Fretwell's testimony. The LPOA, which is dated July 21, 2009, includes the trust on 

behalf of which Deutsche Bank purports to be acting as trustee in the foreclosure 

proceeding against Shaffer. However, nothing in the LPOA identifies any of the notes 

or mortgages that make up any of the trusts to which the LPOA applies. And while we 

will generally defer to a witness's trial testimony on factual matters, we need not do so 

when that testimony is nothing more than the witness's interpretation of a document that 

is equally available to this court. Cf. Emergency Assocs. of Tampa, P.A. v. Sassano, 

664 So. 2d 1000, 1002 (Fla. 2d DCA 1995) (noting that the appellate court is on equal 

footing with a trial court when interpreting a written document); Fla. Power Corp. v. 

Lynn, 594 So. 2d 789, 791 (Fla. 2d DCA 1992) (noting that the interpretation of a written 

document is a question of law, on which an appellate court need not defer to the trial 

court). Hence, neither the LPOA nor Fretwell's testimony establish when or if Deutsche 

Bank took ownership of the Shaffer note, and so neither can establish that Deutsche 

Bank had standing when the foreclosure complaint was filed. 

 In addition, no other document introduced at trial shows that the Shaffer 

note and mortgage are included in the Deutsche Bank trust. The record shows that 

prior to trial, Deutsche Bank filed a request for judicial notice, attached to which was a 
- 7 - 

partial copy of a Pooling and Service Agreement (PSA) relating to the applicable trust. 

However, this PSA—a document personal to one of the parties—was not subject to 

judicial notice under any of the provisions of either section 90.201 or section 90.202, 

Florida Statutes (2014). Moreover, the unauthenticated PSA was simply attached to a 

notice of filing, making it inadmissible at trial without further testimony. See, e.g., BAC 

Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 939 (Fla. 2d 

DCA 2010) (noting that an unauthenticated document attached as an exhibit to a motion 

did not constitute admissible evidence); Ciolli v. City of Palm Bay, 59 So. 3d 295, 297 

(Fla. 5th DCA 2011) (noting that an unauthenticated document attached to a 

memorandum of law does not constitute competent evidence); Tunnell v. Hicks, 574 So. 

2d 264, 266 (Fla. 1st DCA 1991) (noting that an unauthenticated letter attached as an 

exhibit to a motion was not admissible and not properly before the court). Because the 

PSA was not subject to judicial notice and because Deutsche Bank took no steps to 

authenticate it or introduce it into evidence at trial, the PSA was not properly before the 

court and cannot constitute evidence of Deutsche Bank's standing. 

 In sum, Deutsche Bank offered no evidence to establish that it owned the 

note on the date it filed the foreclosure complaint in this case, and it therefore failed to 

prove that it had standing. Shaffer's motion for involuntary dismissal should have been 

granted without further ado. For this reason, I agree with the majority's decision to 

reverse the final judgment in this case.4 

 4The majority cites to several cases that pertain to whether there was 

evidence that "the indorsee had the intent to transfer any interest to the trustee." Given 

that Deutsche Bank offered no admissible evidence that the Shaffer note and mortgage 

were ever transferred into the trust, I find these cases irrelevant to the issue of standing 

before this court. 
- 8 - 

 I also take this opportunity to make two recommendations based on my 

observations from the flood of foreclosure litigation that this court has reviewed in the 

past few years. First, I believe it would behoove trial courts working in this area to 

create a checklist of sorts to ensure that they are making a proper ruling on the issue of 

standing. Information concerning standing that could be gathered from the court file 

prior to trial could be listed, with blanks for missing dates or information. As the trial 

progresses, the trial court could use the form to determine whether admissible evidence 

had been offered to fill in any blanks and whether the plaintiff had, in fact, established 

standing. This would avoid repetitious reversals based on simple failures of proof that 

are easily addressable with proper documents or connecting testimony. 

 Second, I believe it would behoove the legislature to consider amending 

the foreclosure statutes to require foreclosure defendants who wish to raise any 

defense other than payment to pay the amounts required by the note and mortgage into 

the court registry. It appears that many foreclosure judgments are entered based on 

dubious proof by the banks due to an understandable lack of sympathy for defendants 

who are years behind on payments and who are raising what appear to be spurious 

delaying defense tactics. Requiring foreclosure defendants to make their payments into 

the court registry would alleviate the temptation to excuse strict compliance with the 

laws of evidence. This method has been successfully utilized in tenant eviction cases in 

which tenants are free to raise defenses to an eviction, but may not do so while at the 

same time refusing to pay rent. See, e.g., § 83.232(1), Fla. Stat. (2014). Using chapter 

83 as a template, the legislature could address the foreclosure backlog and ensure that 

foreclosure cases would be expedited without sacrificing due process.