DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CARLOS M. RIVERA and YANIRA J. PENA SANTIAGO,

Appellants,

v.

WELLS FARGO BANK, N.A.,

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS 

INCORPORATED as Nominee for FDIC as Receiver for AMTRUST BANK,

SHAUGHNESSY VILLAGE HOMEOWNERS ASSOCIATION, INC., and

OLYMPIA MASTER ASSOCIATION, INC.,

Appellees.

No. 4D14-2273

[April 20, 2016]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Howard H. Harrison, Senior Judge; L.T. Case No. 

2010CA003319.

Brian Korte and Scott J. Wortman of Korte and Wortman, P.A., West 

Palm Beach, for appellants.

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

Fields Jorden Burt, P.A., West Palm Beach, for appellee Wells Fargo Bank, 

N.A.

GERBER, J.

The borrowers appeal from the circuit court’s final judgment of 

foreclosure in the bank’s favor after a non-jury trial. The note upon which 

the foreclosure action was based was an electronic note (“e-note”). The 

borrowers argue, among other things, that the plaintiff, Wells Fargo Bank, 

N.A. (“the bank”) did not prove the identity of the e-note’s current owner

or that the e-note’s current owner authorized the bank to pursue the 

foreclosure. We conclude the borrowers’ arguments lack merit. We affirm.

We present this opinion in four parts: (1) a description of the e-note; 

(2) a recitation of the instant case’s procedural history; (3) a summary of

the non-jury trial; and (4) our review of the borrowers’ arguments.
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1. The E-Note

On April 1, 2008, the borrowers executed an e-note in favor of 

Homebuyers Financial, LLC. The e-note included the following terms, in 

pertinent part:

12. ISSUANCE OF TRANSFERABLE RECORD; 

IDENTIFICATION OF NOTE HOLDER; CONVERSION FROM 

ELECTRONIC NOTE TO PAPER-BASED NOTE

(A) I expressly state that I have signed this electronically 

created Note (the “Electronic Note”) using an Electronic 

Signature. By doing this, I am indicating that I agree to the 

terms of this Electronic Note. I also agree that this Electronic 

Note may be Authenticated, Stored and Transmitted by 

Electronic Means (as defined in Section 12(F)), and will be 

valid for all legal purposes, as set forth in the Uniform 

Electronic Transactions Act, as enacted in the jurisdiction 

where the Property is located (“UETA”), the Electronic 

Signatures in Global and National Commerce Act (“E-SIGN”), 

or both, as applicable. In addition, I agree that this Electronic 

Note will be an effective, enforceable and valid Transferable 

Record (as defined in Section 12(F)) and may be created, 

authenticated, stored, transmitted and transferred in a 

manner consistent with and permitted by the Transferable 

Records sections of UETA or ESIGN.

(B) Except as indicated in Sections 12(D) and (E) below, 

the identity of the Note Holder and any person to whom this 

Electronic Note is later transferred will be recorded in a 

registry maintained by MERSCORP, Inc., a Delaware 

corporation or in another registry to which the records are 

later transferred (the “Note Holder Registry”). The 

authoritative copy of this Electronic Note will be the copy 

identified by the Note Holder after loan closing but prior to 

registration in the Note Holder Registry. If this Electronic Note 

has been registered in the Note Holder Registry, then the 

authoritative copy will be the copy identified by the Note 

Holder of record in the Note Holder Registry or the Loan 

Servicer (as defined in the Security Instrument) acting at the 

direction of the Note Holder, as the authoritative copy. The 

current identity of the Note Holder and the location of the 

authoritative copy, as reflected in the Note Holder Registry, 

will be available from the Note Holder or Loan Servicer, as 
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applicable. The only copy of this Electronic Note that is the 

authoritative copy is the copy that is within the control of the 

person identified as the Note Holder in the Note Holder 

Registry (or that person’s designee). No other copy of this 

Electronic Note may be the authoritative copy. 

(C) If Section 12(B) fails to identify a Note Holder Registry, 

the Note Holder (which includes any person to whom this 

Electronic Note is later transferred) will be established by, and 

identified in accordance with, the systems and processes of 

the electronic storage system on which this Electronic Note is 

stored.

(D) I expressly agree that the Note Holder and any person 

to whom this Electronic Note is later transferred shall have 

the right to convert this Electronic Note at any time into a 

paper-based Note (the “Paper-Based Note”). . . .

. . . .

(F) The following terms and phrases are defined as follows: 

(i) “Authenticated, Store and Transmitted by Electronic 

Means” means that this Electronic Note will be identified as 

the Note that I signed, saved, and sent using electrical, digital, 

wireless, or similar technology; (ii) “Electronic Record” means 

a record created, generated, sent, communicated, received, or 

stored by electronic means; (iii) “Electronic Signature” means 

an electronic symbol or process attached to or logically 

associated with a record and executed or adopted by a person 

with the intent to sign a record; (iv) “Record” means 

information that is inscribed on a tangible medium or that is 

stored in an electronic or other medium and is retrievable in 

perceivable form; and (v) “Transferable Record” means an 

electronic record that: (a) would be a note under Article 3 of 

the Uniform Commercial Code if the electronic record were in 

writing and (b) I, as the issuer, have agreed is a Transferable 

Record.

The e-note was secured by a mortgage. The mortgage identified 

Homebuyers as the lender and MERS as the mortgagee.
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2. The Procedural History

In January 2010, the bank filed a complaint to foreclose the mortgage

based on the borrowers’ default. In the complaint, the bank did not refer 

to the fact that the note was an e-note. Instead, the bank alleged that it 

was the “servicer for the owner and acting on behalf of the owner with 

authority to do so” and was “the present designated holder of the note and 

mortgage with authority to pursue the present action.” Although the bank 

attached to the complaint a copy of the mortgage, the bank did not attach 

to the complaint a copy of the e-note.

In November 2010, the bank filed an amended complaint. In the 

amended complaint, the bank alleged Federal National Mortgage 

Association (“Fannie Mae”) “is the owner of the note”; the bank “is the 

servicer of the loan and is holder of the note”; and Fannie Mae “has 

authorized [the bank] to bring this action.” The proposed amended 

complaint then contained counts for mortgage foreclosure and reestablishment of lost note. The lost note count alleged:

[The bank] was in possession of the Mortgage Note and 

entitled to enforce it when loss of possession occurred or [the 

bank] has been assigned the right to enforce the Mortgage 

Note. (See the attached true copy of the Note.)

. . . .

At some point between April 1, 2008, and the present, the 

Mortgage Note has either been lost or destroyed and the [bank] 

is unable to state the manner in which this occurred. After 

due and diligent search, [the bank] has been unable to obtain 

possession of the Mortgage Note.

Attached to the amended complaint were copies of the mortgage and 

the e-note. The e-note’s last page contained the following notations:

Electronically signed by [borrower] Yanira J Pena Santiago on 

4/1/2008 6:13:03 PM

YaniraJPena Santiago (Seal) - Borrower

Electronically signed by [borrower] Carlos M Rivera on 

4/1/2008 6:13:29 PM

CarlosMRivera (Seal) - Borrower
5

In 2011, the borrowers filed a suggestion of bankruptcy. In the 

bankruptcy case, the borrowers identified the e-note and mortgage as a 

debt to the bank. The bankruptcy court later discharged the borrowers 

from bankruptcy without discharging the borrowers’ debt to the bank.

In June 2013, the bank filed an “E-NOTE CERTIFICATE OF 

AUTHENTICATION,” in which the bank’s assistant vice president attested:

1. . . . The Bank acts as a servicer for [Fannie Mae] with 

respect to the residential mortgage loan executed . . . by [the 

Borrowers] . . . . The promissory note evidencing the 

Borrowers’ obligation to repay the Loan is an electronic record, 

as authorized by the federal ESIGN Act, 15 USC § 7001 et 

seq., and in particular 15 USC § 7021.

2. As part of its function as servicer, the Bank maintains a 

copy of the Borrowers’ electronic promissory note on behalf of 

Fannie Mae. I am responsibilities [sic] for overseeing the 

process by which the Bank maintains the electronic 

promissory notes evidencing residential mortgage loans. 

(“Electronic Records”).

3. Each Electronic Record is received in accordance with 

established procedures and processes for reliable receipt, 

storage and management of Electronic Records (the 

“Electronic Record Procedures”). The Electronic Record 

Procedures provide controls to assure that each Electronic 

Record is accurately received as originally executed and 

transmitted, and indexed appropriately for later identification 

and retrieval. Each Electronic Record is protected against 

undetected alteration by industry-standard encryption 

techniques and system controls. The Electronic Record is an 

official record of the Bank and is readily accessible for later 

reference.

4. Each Electronic Record is maintained and stored by the 

Bank in the ordinary course of business. The Electronic 

Records are maintained and stored by the Bank continuously 

from the time of receipt.

5. The paper copy of the Electronic Record attached . . . is a 

true and correct copy of the Borrowers’ promissory note 

described above, as maintained and stored by the Bank in 
6

accordance with the procedures in Paragraphs 3 and 4 of this 

Certificate.

Attached to the sworn certificate of authentication was a copy of the enote bearing the borrowers’ electronic signatures. This copy of the e-note

also bore a notation at the top of each page stating “Form 3210e – Florida 

Fixed Rate Note – Single Family – Fannie Mae UNIFORM INSTRUMENT.” 

Also attached was a “Summary Information” sheet describing the bank as 

the “Controller” and “Delegatee” of the e-note; indicating that the e-note

was located with the bank; identifying the property address; and 

containing the following information:

Registration Date: 04/01/2008 22:21

Borrower(s): Pena Santiago, Yanira J

Rivera, Carlos M

Also attached was a document from MERS showing that the bank had

electronic possession of the e-note, and that the borrowers’ electronic 

signatures on the e-note were successfully validated.

In October 2013, the borrowers answered the amended complaint, and 

alleged as an affirmative defense that the bank lacked standing. 

Specifically, the borrowers alleged that the bank “failed to allege ultimate 

facts as to how or why it came to be the owner and holder of the note and 

mortgage when the Note was secured.” Another affirmative defense 

challenged the “lack of authenticity and/or validity of any signatures or 

indorsements on the Note . . . pursuant to Florida Statute 673.3081.”

3. The Non-Jury Trial

At the non-jury trial, the bank stated it was voluntarily dismissing its

lost note count because “[t]hat was an error.” The borrowers then 

stipulated to the admissibility of five bank exhibits:

(1) a copy of the mortgage;

(2) a copy of the bank’s pre-suit notice of default, 

acceleration, and right to reinstatement;

(3) a screen shot of the borrowers’ loan payment history

showing that the bank became the loan’s servicer on 

August 1, 2008, and showing that the borrowers made 

payments to the bank until June 1, 2009;

(4) a screen shot documenting Fannie Mae’s ownership of the

note and mortgage, and a copy of Fannie Mae’s
7

appointment of the bank as Fannie Mae’s attorney-in-fact 

to foreclose upon mortgages; and

(5) a copy of the borrower’s bankruptcy petition identifying 

the e-note and mortgage as a debt to the bank, and a copy 

of the bankruptcy court’s order discharging the borrowers 

from bankruptcy without discharging the borrowers’ debt 

to the bank.

However, the borrowers objected to the bank’s sixth exhibit, which was 

comprised of a paper copy of the e-note, the certificate of authentication, 

and the certificate’s attachments.

The bank called its loan verification analyst as a witness in an attempt 

to introduce the composite exhibit into evidence. The witness explained 

that the certificate of authentication

illustrat[es] the recordkeeping of [the bank’s] e-notes, and 

attest[s] to this e-note being in the electronic form. The e-note 

was attached to the certification, and right behind it [the bank] 

attached a document from MERS showing that [the bank] had 

the electronic possession of the e-note, as well as the 

signature validation, showing that the signature on the e-note 

was successfully validated.

Following that testimony, the bank offered the composite exhibit into 

evidence. The borrowers raised a hearsay objection. The court overruled 

the objection, and admitted the composite exhibit into evidence.

On cross-examination, the bank’s witness agreed with the borrowers’ 

counsel that because the note was an e-note, there was no hard copy 

original note, and there were no endorsements attached to it.

On re-direct, the bank’s counsel asked its witness when the bank 

obtained the right to enforce the e-note. The borrowers objected under 

hearsay and the best evidence rule. The court reserved ruling on the 

objections. The bank’s witness then testified: “The payment history 

contains an acquisition screen that’s dated August 1, 2008. That’s when 

[the bank] became the servicer of this loan with rights to enforce the note.” 

The borrowers did not then seek to obtain a ruling on their objections. The 

borrowers also did not offer any evidence during the trial.

The trial court entered its final judgment of foreclosure in the bank’s 

favor. This appeal followed.
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4. Our Review of the Borrowers’ Arguments

The borrowers argue that the bank failed to establish standing to file 

suit when this action was commenced because the bank did not prove

that: (1) it had pre-suit possession of the e-note; (2) the e-note contained

the borrowers’ signatures; (3) the e-note’s terms for electronic transfers of 

the e-note to later holders were met; or (4) Fannie Mae owned the e-note 

and authorized the bank to pursue the foreclosure.

The borrowers’ first and third arguments were not raised in the trial 

court and thus are not cognizable on appeal. See Aills v. Boemi, 29 So. 3d 

1105, 1108-09 (Fla. 2010) (“In order for an argument to be cognizable on 

appeal, it must be the specific contention asserted as legal ground for the 

objection, exception, or motion below.”).

The borrowers’ second and fourth arguments lack merit, applying our 

de novo review. See Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1040 

(Fla. 4th DCA 2015) (“This court reviews the sufficiency of the evidence to 

prove standing to bring a foreclosure action de novo.”) (citation omitted).

On the borrowers’ second argument, section 673.3081(1), Florida

Statutes (2010), Uniform Commercial Code Comment, provides: “[U]ntil 

some evidence is introduced which would support a finding that the 

signature is forged or unauthorized, the plaintiff is not required to prove 

that it is valid.” Here, the borrowers did not introduce any evidence to 

support a finding that their electronic signatures on the e-note were forged 

or unauthorized. Thus, the bank was not required to prove that their 

electronic signatures were valid.

On the borrowers’ fourth argument, the bank presented competent, 

substantial evidence that Fannie Mae owned the e-note and authorized the 

bank to pursue the foreclosure. We base this conclusion on: (a) our 

examination of section 668.50, Florida Statutes (2010), otherwise known 

as the “Uniform Electronic Transactions Act”; and (b) our review of the 

bank’s other evidence in the case. We address each in turn.

a. The Uniform Electronic Transactions Act

The Uniform Electronic Transactions Act provides, in pertinent part:

(16) Transferable records.—

(a) For purposes of this paragraph, “transferable record” 

means an electronic record that:
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1. Would be a note under chapter 673, or a document 

under chapter 677, if the electronic record were in writing.

2. The issuer of the electronic record expressly has agreed 

is a transferable record.

(b) A person has control of a transferable record if a system 

employed for evidencing the transfer of interests in the 

transferable record reliably establishes that person as the 

person to which the transferable record was issued or 

transferred.

(c) A system satisfies paragraph (b), and a person is deemed 

to have control of a transferable record, if the transferable 

record is created, stored, and assigned in such a manner that:

1. A single authoritative copy of the transferable record 

exists which is unique, identifiable, and, except as otherwise 

provided in subparagraphs 4., 5., and 6., unalterable.

2. The authoritative copy identifies the person asserting 

control as the person to which the transferable record was 

issued or, if the authoritative copy indicates that the 

transferable record has been transferred, the person to which 

the transferable record was most recently transferred.

3. The authoritative copy is communicated to and 

maintained by the person asserting control or its designated 

custodian.

. . . .

(d) Except as otherwise agreed, a person having control of a 

transferable record is the holder, as defined in s. 671.201(21), 

of the transferable record and has the same rights and 

defenses as a holder of an equivalent record or writing under 

the Uniform Commercial Code, including, if the applicable 

statutory requirements under s. 673.3021, s. 677.501, or s. 

679.330 are satisfied, the rights and defenses of a holder in 

due course, a holder to which a negotiable document of title 

has been duly negotiated, or a purchaser, respectively. 

Delivery, possession, and indorsement are not required to 

obtain or exercise any of the rights under this paragraph.
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(e) Except as otherwise agreed, an obligor under a 

transferable record has the same rights and defenses as an 

equivalent obligor under equivalent records or writings under 

the Uniform Commercial Code.

(f) If requested by a person against which enforcement is 

sought, the person seeking to enforce the transferable record 

shall provide reasonable proof that the person is in control of 

the transferable record. Proof may include access to the 

authoritative copy of the transferable record and related 

business records sufficient to review the terms of the 

transferable record and to establish the identity of the person 

having control of the transferable record.

§ 668.50(16), Fla. Stat. (2010).1

Applying the Uniform Electronic Transaction Act here, the bank 

presented competent, substantial evidence proving that Fannie Mae owned 

the e-note and authorized the bank to pursue the foreclosure. The e-note, 

on its face, is a “transferable record” because it is an electronic record that

would be a note under chapter 673 if it were in writing, and its issuer 

expressly agreed on its face that it was a transferable record. § 

668.50(16)(a). The bank’s evidence proved that Fannie Mae had control of 

the e-note by showing that the bank, as Fannie Mae’s servicer, employed 

a system reliably establishing Fannie Mae as the entity to which the e-note 

was transferred. § 668.50(16)(b). According to the bank’s evidence, the 

bank’s system stored the e-note in such a manner that a single

authoritative copy of the e-note exists which is unique, identifiable, and 

unalterable. § 668.50(16)(c)1. That authoritative copy, introduced into

evidence by the bank as Fannie Mae’s designated custodian, identified

Fannie Mae as the entity to which the transferable record was most 

recently transferred. § 668.50(16)(c)2., 3. That authoritative copy was 

supplemented by the “Summary Information” sheet, describing the bank 

as the “Controller” and “Delegatee” of the e-note and indicating that the e-

 

1 In 2014, after the trial court entered the final judgment in this case, our 

supreme court adopted Florida Rule of Civil Procedure 1.115, entitled “Pleading 

Mortgage Foreclosures.” The new rule states, in pertinent part: “The term 

‘original note’ or ‘original promissory note’ . . . includes a transferable record, as 

defined by the Uniform Electronic Transactions Act in section 668.50(16), Florida 

Statutes.” Fla. R. Civ. P. 1.115(b) (2014) (emphasis added).
11

note was located with the bank, and by the document from MERS showing 

that the bank had electronic possession of the e-note.

Because the bank proved that Fannie Mae had control of the e-note, 

and that the bank was Fannie Mae’s designated custodian, the bank is the 

e-note’s holder, as defined in section 671.201(21), Florida Statutes (2010), 

and has the same rights as a holder of an equivalent record or writing 

under the Uniform Commercial Code. § 668.50(16)(d). Delivery, 

possession, and indorsement were not required to exercise any of those 

rights. Id.

b. The Bank’s Other Evidence in This Case

The bank’s other competent, substantial evidence in this case proved 

that Fannie Mae owned the e-note and authorized the bank to pursue the 

foreclosure. The borrowers stipulated to the admissibility of the bank’s 

exhibits 2 through 5. Exhibit 2, which was the notice of default, 

acceleration, and right to reinstatement, was issued by the bank without 

objection. Exhibit 3, which was a screen shot of the borrowers’ loan 

payment history, showed that the bank became the loan’s servicer on 

August 1, 2008, and that the borrowers made payments to the bank until 

June 1, 2009. Exhibit 4 documented Fannie Mae’s ownership of the note 

and mortgage and Fannie Mae’s appointment of the bank as Fannie Mae’s 

attorney-in-fact to foreclose upon mortgages. Exhibit 5, which was a 

composite of the borrowers’ bankruptcy petition and the bankruptcy 

court’s order discharging the borrowers from bankruptcy, respectively 

identified the e-note and mortgage as a debt to the bank, and indicated 

that the borrowers’ debt to the bank was not discharged.

The bank’s witness also provided competent, substantial evidence to 

prove that Fannie Mae authorized the bank to pursue the foreclosure. 

When the bank’s counsel asked its witness on re-direct when the bank 

obtained the right to enforce the e-note, the bank’s witness answered: 

“The payment history contains an acquisition screen that’s dated August 

1, 2008. That’s when [the bank] became the servicer of this loan with 

rights to enforce the note.” The borrowers did not challenge this testimony.

Based on the foregoing, the bank presented competent, substantial 

evidence that Fannie Mae owned the e-note and authorized the bank to 

pursue the foreclosure. We affirm on that argument and the other 

arguments addressed above.

Affirmed.
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MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.