DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JACQUELINE SHAW JOHNSON,

Appellant,

v.

SPACE COAST CREDIT UNION, as servicer for FEDERAL

HOME LOAN BANK OF ATLANTA,

Appellee.

No. 4D14-205

[February 17, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE12014242.

Dustin A. Zacks of King, Nieves & Zacks, PLLC, West Palm Beach, for 

appellant.

Gaspar Forteza and Moises T. Grayson of Blaxberg, Grayson & Kukoff, 

P.A., Miami, for appellee.

KLINGENSMITH, J.

Jacqueline Shaw Johnson (“appellant”) appeals the trial court’s final 

summary judgment of foreclosure in favor of Space Coast Credit Union 

(“appellee”). We agree with appellant that appellee failed to present 

sufficient proof of its standing to foreclose to support the entry of summary 

judgment, and reverse.

Appellant executed a promissory note and mortgage with Eastern 

Financial Credit Union for the purchase of a home. Eastern then sold both 

the note and the mortgage to the Federal Home Loan Bank of Atlanta (the 

“Bank”) pursuant to a Participating Financial Institution Agreement (the 

“PFIA”), and thereafter Eastern became the servicer for appellant’s loan.1

1 Although appellee asserts that Eastern sold the note and mortgage to the Bank, 

it did not provide a date for when that sale took place. Additionally, there was 

no evidence of a confirmation of the sale as described in the PFIA. The PFIA 

provided that “The Bank’s interest in all Mortgages funded or purchased under 

this Contract shall be evidenced by a Confirmation which shall conclusively 

establish the Bank’s ownership of the Mortgages.”
2

Shortly after appellant defaulted on the loan, appellee merged with Eastern 

and assumed its assets, liabilities, and obligations under the prior PFIA, 

and also entered into its own PFIA with the Bank. This second PFIA 

established appellee as the Bank’s servicer.

Three years after the default, appellee filed a verified initial complaint 

of foreclosure against appellant, claiming that it was bringing the action 

as the servicer for the Bank, which owned the note and mortgage. Appellee 

stated that Eastern delivered both the mortgage and the note, endorsed in 

blank, to the Bank before Eastern and appellee merged. Appellee attached 

both the note and mortgage to the complaint, but the note was payable to 

Eastern and did not contain any endorsements. Appellee also attached an 

assignment of the mortgage executed by Eastern, but the document did 

not list an assignee. Finally, appellee attached a certificate of merger to 

substantiate its merger with Eastern as well as its assumption of Eastern’s 

duties under the first PFIA.

During the litigation, appellee filed an affidavit signed by its real estate 

loss mitigation manager in an attempt to assert an additional count to 

reestablish a lost note (the “Lost Note Affidavit”), even though a lost note 

count was not raised in the initial complaint. The Lost Note Affidavit stated 

that the original note had been lost and could not be found, and included 

as an attached exhibit a copy of the note with an allonge bearing an 

undated, blank endorsement from Eastern. Appellee never formally moved 

to amend the complaint to add the lost note count.

Appellee then filed a motion for final summary judgment of foreclosure. 

In her defense against the motion, appellant argued, in pertinent part, that 

appellee failed to show it had possession of the original note when the 

complaint was filed, and that there was no evidence that the Bank ever 

owned or possessed the note.

In response, appellee filed the affidavit of an assistant manager of 

mortgage program operations/bank officer for the Bank, who claimed that 

appellee was “authorized to foreclose on any and all loans that are subject 

to the” two PFIAs, and attached copies of both agreements. The assistant 

manager also averred that the Bank owned the note and mortgage and 

that appellee was a holder of the instruments. That same day, appellee 

filed an amended motion for summary judgment containing allegations 

consistent with the assistant manager’s affidavit, claiming that it had 

standing to foreclose based upon its status as servicer for the Bank and 

its possession of the note bearing the blank endorsement from Eastern.
3

The trial court conducted a hearing on appellee’s motion for summary 

judgment and rendered final summary judgment in favor of appellee. This 

timely appeal followed.

We have held that “[a] plaintiff must tender the original promissory note 

to the trial court or seek to reestablish the lost note under section 

673.3091, Florida Statutes.” Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 

1105, 1107 (Fla. 4th DCA 2010); see also State St. Bank & Trust Co. v. 

Lord, 851 So. 2d 790, 791 (Fla. 4th DCA 2004) (“To maintain a mortgage 

foreclosure, the plaintiff must either present the original promissory note 

or give a satisfactory explanation for its failure to do so.”). Additionally, 

“[i]ssues that are not pled in a complaint cannot be considered by the trial 

court at a summary judgment hearing.” Reddy v. Zurita, 172 So. 3d 481, 

484 (Fla. 5th DCA 2015) (quoting Saralegui v. Sacher, Zelman, Van Sant 

Paul, Beily, Hartman & Waldman, P.A., 19 So. 3d 1048, 1051 (Fla. 3d DCA 

2009)).

Here, appellee attempted to pursue a claim that was not included in its 

initial complaint and never raised in an amended complaint; namely, a 

claim to reestablish a lost note. Instead, appellee filed the Lost Note 

Affidavit stating that the note had been lost, which contradicted the 

assertions in the initial complaint, and attached a different copy of the 

note which included an allonge bearing a blank endorsement from 

Eastern. This version of the note was not attached to any other pleading 

besides the Lost Note Affidavit.

Because appellee never formally requested leave to amend the 

complaint, the count to reestablish the lost note was not properly before 

the trial court at the summary judgment hearing. See Feltus v. U.S. Bank 

Nat’l Ass’n, 80 So. 3d 375, 375-77 (Fla. 2d DCA 2012) (holding that a 

pleading attempting to assert an additional claim that is not filed in 

accordance with Florida Rule of Civil Procedure 1.190(a) is a nullity, and 

such claims are not properly before the trial court at the summary 

judgment stage); see also Reddy, 172 So. 3d at 484 (holding that a trial 

court cannot consider issues that were not raised in a complaint at the 

summary judgment stage). By extension, any attachments to the Lost 

Note Affidavit were irrelevant to the proceedings before the court. Thus, 

the only properly filed version of the note the trial court could consider at 

the summary judgment hearing was the note attached to the initial 

complaint, which listed Eastern as the payee and did not contain any 

subsequent endorsements.

The fact that appellee attempted to raise a lost note count and filed a 

more recent version of the note with the Lost Note Affidavit indicates that 
4

the copy of the note attached to the initial complaint was not the original. 

As such, the original note was never properly filed with the trial court. 

Even if it had been, appellee still did not present any summary judgment 

evidence regarding when the blank endorsement from Eastern was placed 

on the copy of note attached to the Lost Note Affidavit, or when appellee 

came into possession of that instrument. A “plaintiff must prove that it 

had standing to foreclose when the complaint was filed.” McLean v. JP 

Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012). 

When attempting “to enforce a note endorsed in blank, a foreclosing party 

must show that they had possession of the note at the inception of the 

lawsuit.” Guzman v. Deutsche Bank Nat’l Trust Co., 4D14-2509, 2015 WL 

7568558, at *2 (Fla. 4th DCA Nov. 25, 2015).2

Appellee argues that it had standing to foreclose as the holder of the 

original note, and because it was authorized by the Bank to bring the 

action as the servicer. Assuming these claims are true, they still do not 

remedy appellee’s failure to properly file the original note with the trial 

court, as required. Servedio, 46 So. 3d at 1107; see also Lord, 851 So. 2d 

at 791. In light of the fact that the note attached to the initial complaint 

(the only note the trial court could consider at the summary judgment 

stage) was payable to Eastern and did not contain any subsequent 

endorsements, appellee’s claims lack merit.

“If the record reflects the existence of any genuine issue of material fact, 

or the possibility of any issue, or if the record raises even the slightest 

doubt that an issue might exist, summary judgment is improper.” Dennis 

v. Kline, 120 So. 3d 11, 20 (Fla. 4th DCA 2013) (quoting Shaw v. Tampa 

Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007)). Considering 

appellee failed to properly file the original note, it cannot be said that there 

were no issues of material fact regarding its standing to foreclose in this 

case.

2 We note that appellee merged with Eastern before it filed suit. It is true that a 

foreclosing party can establish standing to foreclose via merger with the original 

lender, so long as it establishes that it acquired all of the original lender’s assets, 

“including [the] note and mortgage, by virtue of the merger.” Fiorito v. JP Morgan 

Chase Bank Nat’l Ass’n, 174 So. 3d 519, 521 (Fla. 4th DCA 2015). Here, however, 

appellee claimed that Eastern sold the note and mortgage to the Bank, and 

delivered the original note endorsed in blank to the Bank, at some point before

the merger took place. Therefore, as the original note was no longer an asset of 

Eastern’s at the time of merger, appellee could not have proved its possession of 

the original note in this manner, even if it had been properly filed with the trial 

court.
5

Because we reverse the trial court’s entry of final summary judgment 

in favor of appellee on the issue of standing, we see no need to address the 

other issues raised by appellant on appeal.

Reversed and Remanded.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.