NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

HAZEL N. PETERS a/k/a HAZEL N. )

JOHNSON; and UNKNOWN TENANT )

1 n/k/a DAVE PETERS, )

)

Appellants, )

)

v. ) Case No. 2D15-2222

)

THE BANK OF NEW YORK MELLON, )

f/k/a THE BANK OF NEW YORK, AS )

TRUSTEE FOR BEAR STEARNS )

ASSET BACKED SECURITIES TRUST )

2006-4, ASSET BACKED )

CERTIFICATES, SERIES 2006-4, and )

LEO JOHNSON, )

)

Appellees. )

)

Opinion filed May 26, 2017.

Appeal from the Circuit Court for Lee 

County; James H. Seals, Senior Judge.

Mark P. Stopa of Stopa Law Firm, Tampa, 

for Appellant Hazel N. Peters a/k/a Hazel

N. Johnson.

Kristen M. Crescenti, Christopher C. O'Brien

and Ronnie J. Bitman of Pearson Bitman

LLP, Maitland, for Appellee The Bank of 

New York Mellon. 

No appearance for Appellee Leo Johnson. 
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WALLACE, Judge.

Hazel N. Peters, a/k/a Hazel N. Johnson (Ms. Peters), challenges a final 

judgment of foreclosure in favor of The Bank of New York Mellon (the Bank) entered 

after a bench trial. Because the Bank failed to prove its ownership of the lost note that it 

attempted to reestablish and enforce, we reverse.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

On March 13, 1998, Ms. Peters and Leo Johnson executed a note in favor 

of ContiMortgage Corporation as the Lender. The note was secured by a standard 

residential mortgage on real property in Lee County, Florida. The mortgage also named 

ContiMortgage Corporation as the Lender.

On January 28, 2013, the Bank filed the underlying action to foreclose the 

mortgage and for the reestablishment of the note, which the Bank alleged had been 

lost. The Bank's complaint alleged September 18, 2008, as the date that the note went 

into default. The Bank filed a lost note affidavit dated on October 31, 2006, and 

executed on behalf of EMC Mortgage Corporation (EMC), a prior holder of the 

mortgage. In the affidavit, the affiant merely asserted that the note "was lost and has 

not been paid, satisfied, assigned, pledged, transferred or hypothecated in any way." 

The affidavit did not provide any details regarding the date or circumstances of the 

asserted loss of the note. A copy of the note was attached to the affidavit. The copy of 

the note did not reflect any indorsements or allonges. The Bank subsequently filed 

another lost note affidavit executed on behalf of Select Portfolio Servicing, Inc. (SPS), 

the current servicer for the loan. The copy of the note attached to the SPS affidavit was 

identical to the copy attached to the EMC affidavit.
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Ms. Peters filed an answer and affirmative defenses to the complaint. In 

her answer, Ms. Peters denied the material allegations of the complaint and asserted 

numerous affirmative defenses. In pertinent part, Ms. Peters denied that the Bank had 

standing to enforce the note and mortgage, asserted that the Bank's action to 

reestablish the lost note was barred by the applicable statute of limitations, and claimed 

that the Bank had failed to comply with a condition precedent to foreclosure because it 

had not notified the borrower of the claimed assignment of the loan within thirty days of 

the assignment in accordance with section 559.715, Florida Statutes (2012).

The lost note was payable to ContiMortgage Corporation; it had not been 

indorsed in blank or payable to the order of the Bank. At trial, the Bank sought to 

establish its ownership of the lost note with a series of four assignments of mortgage. 

The first assignment, dated April 8, 1998, was from ContiMortgage Corporation to 

ContiWest Corporation. The second assignment, dated April 7, 1998, was from 

ContiWest Corporation to Manufacturers and Traders Trust Company. Although the 

second assignment was dated one day before the first one, it was recorded after the 

recording of the first one. The third assignment, dated June 28, 2010, was from 

Manufacturers and Traders Trust Company to EMC. Each of the first three 

assignments expressly assigned both the mortgage and the note that was secured by it.

The fourth assignment, dated December 7, 2012, was from EMC to the 

Bank. In pertinent part, the fourth assignment assigned "all of Assignor's right, title and 

interest all beneficial interest under a certain Mortgage, dated March 13, 1998, made 

and executed by Leo Johnson and Hazel N. Johnson fka Hazel N. Peters to 
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ContiMortgage Corporation . . . ."1 At trial, Ms. Peters argued that the fourth assignment 

was insufficient to establish the Bank's ownership of the lost note because it assigned 

only the mortgage, not the note. The trial court ruled that the fourth assignment was 

sufficient to assign the note as well as the mortgage and rejected Ms. Peters' argument. 

The trial court admitted the certified copies of the four assignments into evidence over 

Ms. Peters' objection.

Counsel for the Bank conceded that the note and mortgage at issue had 

been the subject of two prior foreclosure actions filed in the Lee County Circuit Court. 

The first action was filed in 2001; the second was filed in 2004. Notably, both actions, 

which were subsequently dismissed, included a count for the reestablishment of a lost 

note. Based on the filing of the prior actions and the first lost note affidavit executed in 

2006, Ms. Peters argued that the Bank's action to reestablish the lost note was barred 

because it had not been brought within the bar of the five-year statute of limitations set 

forth in section 95.11(2)(b), Florida Statutes (1997). The trial court rejected this 

argument, reasoning as follows:

The purpose of the statute of limitations is to try to 

prevent stale claims, okay, but my belief—and this is going 

to be the ruling of the Court—that the loss or discovery of the 

lost instrument is not a claim. It's an event. It's nothing that 

gives rise to a claim that would give rise to [a] cause of 

action. The only time that there's going to be a claim 

resulting from a lost instrument is when it needs to be 

enforced and that is when it goes into default. So the ruling 

of the Court . . . is going to be that there is no need once a 

lost negotiable instrument is discovered as being lost, that 

they have to file a cause of action to reestablish that note 

when that note is not being sought to be enforced.

 

1We understand that there appears to be one or more words missing from 

this operative language. But the quote is accurate; we have not inadvertently dropped

any words from the quoted language.
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Upon inquiry by counsel as to the effect of the filing of the two prior actions to enforce 

the lost note on the accrual of the cause of action, the trial court reiterated its ruling that 

the statute of limitations had not run so as to bar the current action to reestablish the 

lost note.

The Bank called a single witness at trial, Cynthia Stevens. At the 

conclusion of the presentation of Ms. Stevens's testimony, the trial court rejected all of 

Ms. Peters' other arguments, including those based on the Bank's asserted lack of 

standing and noncompliance with the requirements of section 559.715. The trial court 

entered the final judgment of foreclosure on April 17, 2015. This appeal followed. 

II. MS. PETERS' APPELLATE ARGUMENTS

On appeal, Ms. Peters raises three points. First, she argues that the Bank 

failed to prove its standing to enforce the lost note. Second, Ms. Peters contends that 

the Bank's claim to reestablish the lost note is barred by the applicable statute of 

limitations. Third, she asserts that the Bank failed to prove that it gave Ms. Peters 

written notice of the assignment of the loan at least thirty days before the filing of the 

underlying action as required by section 559.715.

Ms. Peters' third point is without merit. See Brindise v. U.S. Bank Nat'l 

Ass'n, 183 So. 3d 1215, 1219-20 (Fla. 2d DCA), review denied, No. SC16-300, (Fla. 

Mar. 22, 2016); Nationstar Mortg., LLC v. Summers, 198 So. 3d 1162, 1162 (Fla. 1st 

DCA 2016) (per curiam affirmance citing Brindise with approval); cf. Bank of Am., N.A. 

v. Siefker, 201 So. 3d 811, 817-18 (Fla. 4th DCA 2016) (holding that section 559.715 

was applicable to the mortgage foreclosure action brought by Bank of America, but that 

the statute did not operate as a condition precedent to bringing a mortgage foreclosure 
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action). Ms. Peters' second point regarding the application of the statute of limitations to 

an action for the reestablishment of a lost promissory note raises an issue that is 

apparently one of first impression in Florida. Although the statute of limitations issue 

raises interesting questions, our resolution of Ms. Peters' first issue makes it 

unnecessary to address her arguments regarding the statute of limitations. Accordingly, 

we turn now to the issue of the Bank's standing to enforce the lost note.

III. DISCUSSION

Our review of a trial court's ruling regarding whether a foreclosure plaintiff

has standing is de novo. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 

3d 1106, 1108 (Fla. 5th DCA 2015) (citing Schmidt v. Deutsche Bank, 170 So. 3d 938, 

941 (Fla. 5th DCA 2015)). "A trial court's determination of whether a party has 

reestablished a lost note is reviewed for sufficiency of the evidence." Home Outlet, LLC 

v. U.S. Bank Nat'l Ass'n, 194 So. 3d 1075, 1077 (Fla. 5th DCA 2016) (citing Correa v. 

U.S. Bank Nat'l Ass'n, 118 So. 3d 952, 956 (Fla. 2d DCA 2013)).

In order to establish its standing, the Bank had to prove either that it was 

the holder or the owner of the note. See Sorrell v. U.S. Bank Nat'l Ass'n, 198 So. 3d 

845, 847 (Fla. 2d DCA 2016). Here, the Bank was not in possession of the note. The 

note was lost at least as early as October 31, 2006. When the note was lost, it had not 

been indorsed by the original lender either in blank or to another party.

Section 673.3091, Florida Statutes (2012), sets forth the requirements for 

a person not in possession of an instrument to enforce it:

(1) A person not in possession of an instrument is 

entitled to enforce the instrument if:
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(a) The 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;

(b) The loss of possession was not the result of a 

transfer by the person or a lawful seizure; and

(c) The person cannot reasonably obtain possession 

of the instrument because the instrument was destroyed, its 

whereabouts cannot be determined, or it is in the wrongful 

possession of an unknown person or a person that cannot 

be found or is not amenable to service of process.

(2) A person seeking enforcement of an instrument 

under subsection (1) must prove the terms of the instrument 

and the person's right to enforce the instrument. If that proof 

is made, s. 673.3081 applies to the case as if the person 

seeking enforcement had produced the instrument. The 

court may not enter judgment in favor of the person seeking 

enforcement unless it finds that the person required to pay 

the instrument is adequately protected against loss that 

might occur by reason of a claim by another person to 

enforce the instrument. Adequate protection may be 

provided by any reasonable means.

The Bank could not prove that it was entitled to enforce the note when the loss of 

possession occurred. Thus, it had to prove that it "ha[d] directly or indirectly acquired 

ownership of the instrument from a person who was entitled to enforce the instrument 

when loss of possession occurred." § 673.3091(1)(a). Where, as in this case, the 

plaintiff cannot prove that it was entitled to enforce a note when it was lost, "the plaintiff 

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

ownership." Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535, 538 (Fla. 5th DCA 

2015); see also Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 

2013) ("A plaintiff who is not the original lender may establish standing to foreclose a 

mortgage loan by submitting a note with a blank or special [i]ndorsement, an 
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assignment of the note, or an affidavit otherwise proving the plaintiff's status as the 

holder of the note.").

The Bank's proof in this regard depended on the chain of four 

assignments of mortgage that began with the original lender. Each of the first three 

assignments expressly included an assignment of the note with the mortgage. 

However, the fourth assignment from EMC to the Bank omitted the critical language 

assigning the note along with the mortgage. Because the fourth assignment assigned 

only the mortgage and not the note, it was insufficient to transfer any interest in the note 

to the Bank. See Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 641-42 (Fla. 2d 

DCA 2015); Kyser v. Bank of Am., N.A., 186 So. 3d 58, 60 (Fla. 1st DCA 2016); Jelic v. 

BAC Home Loans Servicing, LP, 178 So. 3d 523, 525 (Fla. 4th DCA 2015); see also

Tilus v. AS Michai LLC, 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) ("[A]n assignment 

of mortgage, even if executed before the foreclosure action commenced, is insufficient 

to prove standing where the assignment reflects transfer of only the mortgage, not the 

note.").

In support of its standing to enforce the lost note, the Bank asserts that the 

reference in the operative language of the fourth assignment to "beneficial interest" in 

the mortgage denotes an inclusion of the note in the assignment as well as the 

mortgage. The Bank relies on Johns v. Gillian, 184 So. 140 (Fla. 1938), as authority for 

this proposition. In Johns, the Florida Supreme Court said: "Any form of assignment of 

a mortgage, which transfers the real and beneficial interest in the securities 

unconditionally to the assignee, will entitle him to maintain an action for foreclosure." Id.
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at 143 (emphasis added). According to the Bank's reading of Johns, a reference in an 

assignment to the beneficial interest in a mortgage "actually assigns the Note as well."

We conclude that the decision in Johns does not support the Bank's 

argument regarding standing for two reasons. First, the Court's recitation of the facts in 

Johns reflects that the note and other securities at issue had been assigned to the 

plaintiff in that case by means other than the assignment of mortgage under review. Id.

at 141, 144. Thus, the facts in Johns are easily distinguishable from the facts of the 

case before us. Second, the isolated snippet from the Johns opinion upon which the 

Bank places its focus—read in the context of the opinion as a whole—does not support 

the Bank's position. The Court's opinion in Johns is consistent with well-established 

Florida law "that a mortgage is but an incident to the debt, the payment of which it 

secures, and its ownership follows the assignment of the debt"—not the other way 

around. Id. at 143.

The Bank also points to the testimony of its trial witness, Ms. Stevens, as 

being sufficient to establish its ownership of the lost note. Ms. Stevens was a "case 

manager" employed by SPS. It appeared that SPS took over the servicing of the loan in 

August 2013. Thus, SPS's involvement with the loan began approximately six months 

after the filing of the underlying action in the trial court and almost five years after the 

loan went into default. After the four assignments of mortgage were admitted into 

evidence, Ms. Stevens testified that the Bank had acquired an ownership interest in the 

note "from a person [sic] who [was] entitled to enforce the note." The Bank did not 

present any documentary evidence regarding how and when it acquired its claimed 
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ownership interest in the note other than the fourth assignment.2 Ms. Stevens 

conceded that when the loan was boarded into SPS's records, the note had already 

been lost. Indeed, the first lost note affidavit indicated that the note was lost at least as 

early as 2006.

Here, Ms. Stevens's testimony was insufficient to establish the ownership 

of the note. SPS did not begin servicing the note until August 2013. Obviously, Ms. 

Stevens had no personal knowledge about the Bank's claim to have acquired ownership 

of the note in 2006. Moreover, Ms. Stevens's testimony in this regard was not 

supported by the limited documentary evidence about the loan that was available. 

Because Ms. Stevens's testimony was not based on personal knowledge and was not 

supported by any documentation, we conclude that the testimony was insufficient to 

establish the Bank's ownership of the lost note. See Tomlinson v. GMAC Mortg., LLC, 

173 So. 3d 1121, 1122-23 (Fla. 2d DCA 2015); Home Outlet, 194 So. 3d at 1078; 

Gonzalez 180 So. 3d at 1108-09; Dixon v. Express Equity Lending Grp., LLLP, 125 So. 

3d 965, 967-68 (Fla. 4th DCA 2013).

IV. CONCLUSION

We have considered the Bank's other arguments about standing, and we 

find them to be without merit. Because the Bank failed to establish its ownership of the 

 

2The lost note affidavit prepared on behalf of SPS and filed in the 

underlying action recited, in pertinent part, as follows: "The business records of [SPS] 

reflect that The Bank of New York, in trust for registered holders of Bear Stearns Asset 

Backed Securities 2006-4, Asset-Backed Certificates, Series 2006-4 (the "Noteholder") 

acquired the Note on or about October 1, 2006. [SPS] services the Note and Mortgage 

on behalf of and as attorney in fact for the Noteholder." The business records 

referenced here were not otherwise identified or described; nor were any copies of the 

business records attached as exhibits to the affidavit.
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lost note, the trial court erred in entering the final judgment of foreclosure. Under these 

circumstances, we must reverse the final judgment and remand this case to the trial 

court with directions to enter an involuntary dismissal of the Bank's complaint. See

Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280, 283 (Fla. 2d DCA 2014); 

Correa, 118 So. 3d at 956-57. 

Reversed and remanded with directions.

SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.