DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

U.S. BANK TRUST, N.A., as Trustee for LSF9 Master

Participation Trust,

Appellant,

v.

LUC PETRE, et al.,

Appellees.

No. 4D19-2656

[November 18, 2020]

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

Beach County; Lisa S. Small, Judge; L.T. Case No. 2013CA012542.

Shannon Troutman of Albertelli Law, Tampa, for appellant.

No appearance for appellees.

ARTAU, J.

This is an appeal from a final summary judgment entered in favor of 

Appellee, Luc Petre (the borrower), in the mortgage foreclosure proceedings 

below. Appellant, U.S. Bank Trust, N.A. (the mortgagee), is a successor in 

interest to the lender. On appeal, the mortgagee argues the circuit court 

erred in granting the motion to strike its responses to the borrower’s 

request for admissions and summary judgment motion and, as a result, 

erred in entering final summary judgment. We agree with the mortgagee

and reverse.

Background

One of the mortgagee’s predecessors initiated the foreclosure 

proceedings below. In its verified complaint, the predecessor mortgagee 

asserted that it had physical possession of the original promissory note 

secured by the mortgage. A copy of the promissory note, indorsed in 

blank, was attached to the complaint along with a certification of 

promissory note possession executed under oath by the records custodian 

for the law firm filing the foreclosure case. The records custodian attested 

that she had reviewed the file provided by the predecessor mortgagee and 
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that it contained the original promissory note indorsed in blank. Both the 

amended and second amended verified complaints included the sworn 

certification and copy of the original promissory note indorsed in blank.

The borrower denied these sworn allegations in his answers to the 

initial and subsequently amended complaints, raising the defense of 

standing. The mortgagee’s predecessor replied that it had standing 

through possession of the original promissory note indorsed in blank. 

After the filing of the second amended complaint, the law firm for the 

mortgagee’s predecessor, through one of its attorneys, filed a notice of 

appearance. That law firm also moved to be formally substituted as 

counsel of record. The substitution of counsel was granted, relieving the 

prior law firm, and replacing the new law firm as counsel of record. The 

mortgagee then succeeded its predecessor and continued to be 

represented by the same law firm. 

Thereafter, the borrower propounded certain admissions designed to 

challenge standing to foreclose. A different attorney with the appearing 

law firm timely responded to the borrower’s request for admissions, 

countering the challenge based on standing. 

The borrower thereafter filed a motion for summary judgment, asserting 

that all facts set forth in his request for admissions were conclusively 

established by virtue of the mortgagee having failed to timely respond to 

his request.1 The borrower argued in his motion that these admissions 

conclusively established no genuine issues of material fact existed as to 

lack of standing to foreclose on the mortgage at the initiation of this 

proceeding, entitling him to judgment in his favor as a matter of law.

The same attorney who responded to the admissions on behalf of the 

law firm also filed a response to the borrower’s motion, arguing that the 

mortgagee had timely responded to the borrower’s request for admissions 

and genuine issues of material fact remained on the issue of the 

mortgagee’s standing to foreclose, precluding entry of summary judgment 

in favor of the borrower. In the response, the mortgagee directed the trial 

court’s attention to the initial verified complaint, sworn certification of 

possession of the promissory note, and the copy of the attached 

promissory note indorsed in blank. The mortgagee also provided the court 

1 See Fla. R. Civ. P. 1.370(a) (“The matter is admitted unless the party to whom 

the request is directed serves upon the party requesting the admission a written 

answer or objection addressed to the matter within 30 days . . . .”). 
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with a copy of the mortgagee’s timely answers to the borrower’s request for 

admissions.

Approximately one week before the hearing date on the summary 

judgment motion, the borrower filed a motion to strike the mortgagee’s 

answers to the admissions and response to the summary judgment motion 

on the grounds that they were signed by an attorney who had not filed his 

own separate notice of appearance. The borrower asserted that in the 

absence of a separate notice of appearance, that attorney was not attorney 

of record for the mortgagee, and his filings were no more than legal 

nullities that should be stricken by the trial court. On the day before the 

hearing, the borrower also filed an affidavit in which he attested to the 

truth of the same facts previously asserted to have been conclusively 

established by the mortgagee’s failure to timely respond to the borrower's 

request for admissions.

Following the summary judgment hearing, the circuit court granted the 

borrower’s motion to strike, and entered a separate order granting the 

borrower’s motion for summary judgment and dismissing the case with 

prejudice. In granting the borrower’s motion to strike, the circuit court 

concluded that the answers to the admissions and response to the 

summary judgment motion were nullities because the responding attorney 

for the law firm was not the attorney of record for the mortgagee. In 

granting the borrower’s summary judgment motion, the circuit court 

reasoned that, as a result of the mortgagee’s failure to respond to the 

borrower’s request for admissions, there were no genuine issues of 

material fact as to lack of standing to foreclose at the inception of this case.

Analysis

On appeal, the mortgagee argues the circuit court erred in striking its 

responses and entering summary judgment. We agree.

While a circuit court’s ruling on a summary judgment motion is subject 

to a de novo review, State Farm Florida Ins. Co. v. Lime Bay Condo., Inc., 

187 So. 3d 932, 934 (Fla. 4th DCA 2016), a circuit court’s ruling on a 

motion to strike discovery answers is reviewed for an abuse of discretion. 

Thomas v. Thomas, 589 So. 2d 944, 946 (Fla. 1st DCA 1991).

We are unable to locate any Florida appellate case that has upheld the 

striking of a party’s discovery answers because they were filed by a 

different attorney from the same appearing law firm. In U.S. Bank Nat’l 

Ass’n v. Bell, 277 So. 3d 633, 635 (Fla. 5th DCA 2019), our sister court 

concluded that a circuit court abused its discretion in determining that a
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law firm’s notice of appearance as co-counsel for the bank in a foreclosure 

action was not sufficient to make it “counsel of record” for the bank in the 

absence of the withdrawal of prior counsel or an order of substitution of 

counsel pursuant to Florida Rule of Judicial Administration 2.505(e). Id. 

at 635. Although Bell did not address the issue of whether each member 

of a law firm must file their own separate appearances, it treated the notice 

of appearance as being that of the law firm as proper counsel of record.

Id.

Here, the circuit court relied upon Florida Rule of Judicial 

Administration 2.515(a)(4), which provides the court with authority to 

strike any court document that is “not signed or is signed with intent to 

defeat the purpose of this rule.” Fla. R. Jud. Admin. 2.515(a)(4). This rule 

provides that a “document of a party represented by an attorney” need only 

be “signed by at least 1 attorney of record” to certify that: “(1) the attorney 

has read the document; (2) to the best of the attorney’s knowledge, 

information, and belief there is good ground to support the document; (3)

the document is not interposed for delay; and (4) the document contains 

no confidential or sensitive information . . . .” Fla. R. Jud. Admin. 

2.515(a)(1)–(4).

The record below does not reflect that the circuit court issued an order 

to show cause or held an evidentiary hearing to determine if the answers 

to the admissions and response to the summary judgment motion were 

“signed with the intent to defeat the purpose of the rule.” The text of rule

2.514(a)(1)–(4) required the circuit court to determine the intent of the 

signer to defeat sub-sections (1) through (4) before it could strike the 

signed filings. At a minimum, this would have required an evidentiary 

hearing or consideration of some evidence as to the intent of the signing 

attorney. Thus, we conclude that the circuit court erred in striking the 

filed answers to the request for admissions and response to the borrower's 

summary judgment motion.

Moreover, the circuit court’s error in striking the mortgagee’s filings led 

the court into also erroneously concluding that there were no triable issues 

of fact on the question of standing to foreclose on the mortgage at the time 

the action commenced. “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). A plaintiff’s status as the holder 

of the original promissory note secured by the mortgage establishes the 

plaintiff’s standing to foreclose on the mortgage, regardless of any 

subsequently recorded assignments. McLean, 79 So. 3d at 173 (citing 

Harvey v. Deutsche Bank Nat’l Trust Co., 69 So. 3d 300, 304 (Fla. 4th DCA 
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2011)). If a note does not name a mortgagee as the payee, the note must 

bear a special indorsement in favor of the mortgagee or a blank 

indorsement. Id. (citing Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 

1106-07 (Fla. 4th DCA 2010), and Riggs v. Aurora Loan Servs., LLC, 36 So.

3d 932, 933 (Fla. 4th DCA 2010)). Undoubtedly, a mortgagee who is not 

the original lender may establish its standing to foreclose with proof that 

its predecessor was in possession of the original note with a blank 

indorsement when it filed the foreclosure complaint. Kenney v. HSBC 

Bank USA, Nat’l Ass’n, 175 So. 3d 377, 379 (Fla. 4th DCA 2015).

Thus, even if the mortgagee had not timely responded to the admissions 

and the summary judgment motion, the verified allegations contained in 

the initial complaint, and included in its amendments, together with the 

sworn certification of possession of the promissory note and the attached 

copy of the original promissory note indorsed in blank, were enough to 

contradict the technical admissions and create a genuine issue of material 

fact on the question of standing, precluding summary judgment as a 

matter of law. See PennyMac Corp. v. Labeau, 180 So. 3d 1216, 1219 (Fla. 

3d DCA 2015) (“[T]he allegations contained in the complaint, together with 

the attachments to the complaint, contradict the technical admissions and 

provide ample evidence that [mortgagee] had standing.”); Wells Fargo 

Bank, N.A. v. Donaldson, 165 So. 3d 40, 42 (Fla. 3d DCA 2015) 

(mortgagee’s failure to timely respond to mortgagor’s request for 

admissions on standing did not support involuntary dismissal of 

mortgagee’s foreclosure action where the allegations contained in the 

verified complaint and the attached copy of the note indorsed in blank 

“contradicted the technical admissions”).

We reached the same conclusion in Sterling v. City of West Palm Beach, 

595 So. 2d 284 (Fla. 4th DCA 1992), where it was argued in an insurance 

claim that the insured had admitted the sustained losses were caused by

non-covered water damage when she failed to respond to the insurance 

company’s request for admissions. Id. at 285. We held in Sterling “that 

the trial court should not have used the technically deemed admission to 

support a final summary judgment. . . . because the record was replete 

with evidence to the contrary of the supposed admission.” Id. (citing Sher 

v. Liberty Mut. Ins. Co., 557 So. 2d 638 (Fla. 3d DCA 1990)). 

Conclusion

From this case’s inception, the verified complaint and sworn 

certification, together with the attached copy of the original promissory 

note indorsed in blank, created genuine issues of material fact precluding 

summary judgment against the mortgagee on the issue of standing despite 
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the subsequent technical admissions. This is true notwithstanding the 

contrary assertions of fact set forth in the borrower’s affidavit, which was 

untimely filed on the eve of the summary judgment hearing.2

Accordingly, we reverse the order of dismissal with prejudice, which 

was predicated on the circuit court’s erroneous grant of summary 

judgment in the borrower’s favor, and remand this case for further 

proceedings consistent with this opinion.

Reversed and Remanded.

CIKLIN, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J., specially concurring.

I concur in the reversal of the order of dismissal. 

The trial judge should not have stricken the lender’s response to the 

borrower’s request for admissions. The court did so because the attorney 

who filed the response had not filed his own notice of appearance in the 

case. He did not need to do so because he was part of the same firm that 

had already filed its notice of appearance through a different attorney.

Once a law firm has appeared in a case pursuant to Florida Rule of 

Judicial Administration 2.505(e), there is no requirement that other 

members of the law firm file a separate notice of appearance each time a 

different lawyer files a pleading or document in the case. This situation is 

not specified in Rule 2.505(e). In a civil case, except as provided in Rule 

2.505(e), a notice of appearance is no longer a part of Florida law. See 

Picchi v. Barnett Bank of S. Fla., N.A., 521 So. 2d 1090, 1091 (Fla. 1988). 

Not requiring separate notices of appearance under these circumstances 

makes sense, because “a firm of lawyers is essentially 1 lawyer for 

purposes of the rules governing loyalty to the client” and pleadings filed by 

one lawyer in a case may be ascribed to the entire firm. R. Regulating Fla. 

Bar 4-1.10 cmt.

* * *

Not final until disposition of timely filed motion for rehearing.

2 See Fla. R. Civ. P. 1.510(c) (providing that all evidence upon which a summary 

judgment movant relies must be served “at least 20 days before the time fixed for 

the hearing”).