DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GEORGE L. KENNEY a/k/a GEORGE KENNEY,

Appellant,

v.

HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR 

DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE PASS-THROUGH 

CERTIFICATES SERIES 2005-6, SUSIE N. KENNEY a/k/a SUSIE 

KENNEY, SEA OAKS PROPERTY OWNERS ASSOCIATION, INC., SEA 

OATS OF JUNO BEACH CONDOMINIUM TWO ASSOCIATION, 

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

Appellees.

No. 4D13-4165

[ July 22, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit; Judy

P. Biebel, Senior Judge; L.T. Case No. 502009CA043442XXXXMB.

Jeffrey Harrington, Millie Orrico and Adriana C. Clamens of Harrington 

Law Associates, PLLC, West Palm Beach, for appellant.

Michael K. Winston, Dean A. Morande and Donna L. Eng of Carlton 

Fields Jorden Burt, P.A., West Palm Beach, for Appellee-HSBC Bank USA, 

National Bank.

PER CURIAM.

The borrower, George Kenney, appeals a final judgment of foreclosure

entered after a non-jury trial. We find merit in his argument that HSBC 

Bank USA, National Association, as Trustee for the Holders of Deutsche 

Alt-A Securities, Inc., Mortgage Loan Trust, Series 2005-6 (“HSBC”) failed 

to prove it had standing at the time it filed the foreclosure action. We 

therefore reverse.

In 2005, the borrower and his wife executed a promissory note in favor 

of American Brokers Conduit. The borrower also executed a mortgage 

securing payment of the note.

On December 29, 2009, HSBC filed a foreclosure complaint against the 
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borrower and his wife. The complaint alleged that HSBC “as servicer for 

the owner and acting on behalf of the owner with authority to do so, is the 

present designated holder of the note and mortgage with authority to 

pursue the present action.” The copy of the note attached to the complaint 

did not contain any endorsements.

On January 4, 2010, a vice president of American Brokers Conduit 

executed an Assignment of Mortgage in favor of HSBC. The assignment 

reflected that it was assigning the mortgage together with the note. The 

assignment stated that it was effective “as of the 1st day of December, 

2009 . . . .”

In the borrower’s answer, he asserted as an affirmative defense that 

HSBC was not in possession of the original promissory note and did not 

have standing to foreclose.

At trial, HSBC attempted to prove its standing by introducing the 

original note, as well as the testimony of a loan verification analyst 

employed by Wells Fargo. The original note bears a blank endorsement 

from the original lender, American Brokers Conduit. But there was no 

testimony indicating when the blank endorsement was placed onto the 

note.

The analyst testified that Wells Fargo acquired the loan and began 

servicing it on August 1, 2006. He testified that when Wells Fargo boarded 

the note on August 1, 2006, there were procedures in place to ensure that 

the original note had the proper endorsement. He also explained that there 

has not been any transfer of ownership of the note since Wells Fargo 

became the servicer on August 1, 2006.

The analyst testified that on August 1, 2006, HSBC—as trustee for an 

entity of Deutsche Bank—was the owner of the note. At another point, 

however, he testified that HSBC was not the owner of the loan and was 

merely the trustee for the Deutsche Bank entity, explaining: “[T]he investor 

– the owner of the note is Deutsche Bank. The plaintiff is HSBC. They’re 

the trustee for them on this case.” He did not know the date when HSBC 

purchased the note.

The borrower introduced the Assignment of Mortgage into evidence and 

questioned the analyst about its contents. The analyst had no explanation 

for why the assignment was signed after the case was filed. He first saw 

the assignment about ten days before trial. He pointed out that the 

assignment indicated that it was effective on a date “prior to the case being 

filed.” However, the analyst’s testimony was based solely on the plain 
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language of the assignment document, and was not based on personal 

knowledge of an assignment that occurred before the filing of the 

complaint.

Following the conclusion of trial, the lower court entered a final 

judgment in favor of HSBC. This appeal ensued.

An appellate court applies a de novo standard of review to the ultimate 

question of whether a plaintiff proved its standing to bring the foreclosure 

action. Dixon v. Express Equity Lending Grp., 125 So. 3d 965, 967 (Fla. 

4th DCA 2013).

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

party seeking foreclosure must demonstrate that it has standing to 

foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 

173 (Fla. 4th DCA 2012). The plaintiff must prove that it had standing to 

foreclose when the original complaint was filed. Id.

The UCC provides that a “person entitled to enforce” a negotiable 

instrument means the holder of the instrument, a non-holder in 

possession of the instrument who has the rights of a holder, or a person 

not in possession of the instrument who is entitled to enforce. § 

673.3011(1)-(3), Fla. Stat. (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 

endorsement, an assignment of the note, or an affidavit otherwise proving 

the plaintiff’s status as the holder of the note.” Focht v. Wells Fargo Bank, 

N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). “When a plaintiff asserts 

standing based on an undated endorsement of the note, it must show that 

the endorsement occurred before the filing of the complaint through 

additional evidence, such as the testimony of a litigation analyst.” Lloyd 

v. Bank of New York Mellon, 160 So. 3d 513, 515 (Fla. 4th DCA 2015).

Here, HSBC did not prove that it was a person entitled to enforce the 

note at the time it filed the foreclosure complaint.

First, the original note was insufficient to prove HSBC’s standing at the 

inception of the case because there was no evidence indicating when the 

blank endorsement was placed onto the note. See Tremblay v. U.S. Bank, 

N.A., 40 Fla. L. Weekly D1064, 2015 WL 2089069 (Fla. 4th DCA May 6, 

2015). In Tremblay, we explained: 
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Bank’s attachment of a copy of the note with a blank 

indorsement was insufficient to establish standing because 

Bank's only witness testified that his employer—the servicer—

had been the holder of the note since August of 2005. Based 

on this testimony, the servicer was the proper party to initiate 

the action, not Bank.

Id. at *1.

Likewise, in this case, the Wells Fargo analyst’s testimony suggested 

that Wells Fargo—the servicer—was the entity in possession of the note 

since 2006, which would mean that Wells Fargo was likely the holder of 

the note when the complaint was filed and would have been the proper 

party to initiate the action. The analyst’s testimony failed to establish that, 

at the time of the original complaint, HSBC was the holder of the note or 

was otherwise a person entitled to enforce the note.

Second, the assignment was insufficient to establish HSBC’s standing. 

Although the assignment contained a purported effective date before the 

complaint was filed, it was executed after the complaint was filed and the 

witness “did not have any information, other than the document itself, to 

verify when the assignment took place.” See Lloyd, 160 So. 3d at 515; see 

also Matthews v. Fed. Nat’l Mortg. Ass’n, 160 So. 3d 131, 133 (Fla. 4th 

DCA 2015) (“Nor does the backdated assignment, standing alone, establish 

standing.”); Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277 n.1

(Fla. 4th DCA 2013) (“Allowing assignments to be retroactively effective 

would be inimical to the requirements of pre-suit ownership for standing 

in foreclosure cases.”).

Finally, the analyst’s vague testimony that either HSBC or a Deutsche 

Bank entity owned the note was insufficient to prove HSBC’s standing. 

HSBC did not introduce a pooling and servicing agreement (“PSA”), nor did 

HSBC introduce any competent evidence that the depositor under the PSA 

had the intent to transfer any interest to HSBC as the trustee. See Jelic v. 

LaSalle Bank, Nat’l Ass’n, 160 So. 3d 127, 130 (Fla. 4th DCA 2015) 

(reversing a final judgment of foreclosure where there was no evidence that 

the party transferring the note into a PSA had any intent to transfer an 

interest to the trustee); Deutsche Bank Nat’l Trust Co. v. Boglioli, 154 So. 

3d 494, 495 (Fla. 4th DCA 2015) (evidence at trial failed to demonstrate 

the plaintiff’s standing to foreclose where the sole testifying witness was 

unable to testify as to when the note was endorsed, and the plaintiff failed 

to introduce a pooling and servicing agreement that was the alleged 

method through which the plaintiff acquired the assignment of the note).
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Because HSBC did not prove that it had standing when it filed the 

original complaint, we reverse and remand for entry of an order of 

involuntary dismissal of the action.

Reversed.

TAYLOR, MAY and KLINGENSMITH, JJ.

* * *

Not final until disposition of timely filed motion for rehearing.