Kathleen A. Ryan, et al. v. HSBC Bank USA, National Association, etc., et al.

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
KATHLEEN A. RYAN, JOHN D. RYAN, and JENNIFER A. RYAN,
Appellants,
v.
HSBC BANK USA, NATIONAL ASSOCIATION as Trustee for DEUTSCHE
ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2006-AR2,
FAIRFAX VILLAGE HOMEOWNERS ASSOCIATION, INC., and
MADISON GREEN MASTER ASSOCIATION, INC.,
Appellees.
No. 4D2024-2957
[April 8, 2026]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	Reid 	Parker 	Scott, 	II, 	Judge; 	L.T. 	Case 	No.
502018CA013901XXXXMB.
Adam Ira Skolnik of Law Office of Adam I. Skolnik, P.A., Deerfield
Beach, for appellants.
Patrick G. Broderick and Beth A. Norrow of Greenberg Traurig, P.A.,
West Palm Beach, for appellee HSBC Bank USA, National Association, etc.
No appearance for appellee Fairfax Village Homeowners Association,
Inc.
No appearance for appellee Madison Green Master Association, Inc.
FORST , J.
Appellants Kathleen, John, and Jennifer Ryan (“the Ryans”) appeal the
trial court’s final judgment of foreclosure for Appellee HSBC Bank, etc.
(“HSBC”). The Ryans argue the trial court erred in finding HSBC provided
sufficient evidence to reestablish a lost promissory note. 	We agree and
reverse.

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Background
The Ryans borrowed money from American Brokers Conduit (“ABC”) to
buy a home in December 2005 in exchange for a mortgage and promissory
note.
This loan was the subject of prior litigation in which nonparty Wells
Fargo Bank won a judgment of foreclosure and the Ryans appealed. 	See
Ryan v. Wells Fargo Bank, N.A., 142 So. 3d 974 (Fla. 4th DCA 2014). 	In
that prior case, Wells Fargo introduced into evidence at trial a copy of the
note with no endorsement, while the record separately contained a copy of
the note with a blank endorsement, which was filed almost two years after
the initial complaint. Id. at 974–75. We reversed because Wells Fargo “did
not demonstrate that the endorsement occurred prior to the filing of the
initial complaint” and accordingly “failed to establish standing to bring
suit.” Id. at 975. However, we found “no error on the remaining issues on
appeal.” 	Id.
The Ryans once again defaulted on the note, and in November 2018,
HSBC filed a lawsuit seeking foreclosure. 	The case went to trial.
The 	evidence 	admitted 	at 	trial 	shows 	that 	Mortgage 	Electronic
Registration Systems Inc. (“MERS”) executed in April 2009, and recorded
in May 2009, a written assignment of the mortgage and promissory note
to Wells Fargo. 	This is the last assignment or transfer of the note that
appears in the trial record. 	Evidence was admitted at trial showing that
the mortgage alone was assigned three more times: by MERS as nominee
of ABC to HSBC in 2012, by MERS to Wells Fargo in 2013, and by Wells
Fargo to HSBC on the same day in 2013. 	None of these three later
assignments purported to transfer the note.
HSBC presented additional exhibits, including a June 2009 notice of
filing the blank-endorsed note filed in the previous Wells Fargo lawsuit; a
June 2018 Lost Note Affidavit (“LNA”) written for this litigation by a non-
testifying 	employee; 	a 	“compilation 	of 	comments 	log”; 	a 	Pooling 	and
Services Agreement (“PSA”); and a mortgage loan schedule. The PSA listed
“Deutsche Bank as depositor, Wells Fargo as the master servicer and
securities administrator, and [HSBC] as trustee,” and had a closing date
of June 1, 2006. 	The LNA stated: “According to the Records attached
hereto as Exhibit B, [HSBC] acquired ownership of the Note from [MERS]
as nominee for [ABC], its successors and assigns. 	[MERS] as nominee for
[ABC], its successors and assigns was entitled to enforce the Note when
loss of possession occurred. 	The Note was originated by [ABC].” 	But the
“Records attached hereto as Exhibit B” were none other than the 2012

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assignment of the mortgage from MERS to HSBC that fails to mention the
note.
HSBC presented the testimony of an Ocwen Loan Servicing, LLC loan
analyst, who testified that the business records indicate ABC transferred
the original physical note to Deutsche Bank. 	The loan analyst could not
confirm when Deutsche Bank had the note. She testified that she did not
know if the collateral file which Deutsche Bank provided to her company
contained the note. 	She testified that a June 6, 2018 entry in the
comments log said, “collateral file received from custodian with no note.
No note received on site.” 	The loan analyst later testified that a February
2014 notation indicates a copy of an LNA from Deutsche Bank was
received, but further testified that she did not have a copy of that LNA.
The Ryans’ counsel repeatedly pressed the loan analyst to explain who
possessed, or had the authority to enforce, the note when it was lost. The
loan analyst could not say. 	When asked if any document showed that
GMAC1 or Ocwen was entitled to enforce the loan when the note was lost,
the loan analyst testified, “I don’t think I have anything here, not that I
can think of off the top of my head, unless I have time to [pore] through
the comment log.” She then found a notation saying, “loan shell boarded,
Ocwen Loan Servicing, LLC, and then it references formerly Res Cap . . .
Res Cap and GMAC, they are one [and] the same,” but then said the PSA
doesn’t mention Res Cap and she had no further evidence that GMAC or
Res Cap was entitled to enforce the note when it was lost. 	When asked,
“[w]hen Ocwen took over servicing from GMAC, what evidence – there’s no
evidence that GMAC had authority to enforce the note at that time?,” the
loan analyst responded, “[a]s far as for the evidence, other than the
notation in the system, that’s what I have.” 	When asked, “is it your
testimony that Deutsche Bank was holding the note at the time it was
lost?,” 	the 	loan 	analyst 	responded, 	“there’s 	just 	been 	notations 	that
Deutsche Bank is the custodian, and refer back to them for the collateral,
and everything that they’ve sent us did not, so far, include the original
note.”
On redirect, the loan analyst testified that there were many attempts to
reach out to various parties to find the original note’s status, and it was
determined that the note was lost. When asked whether, “based on all the
information that you have, including in your notes the exhibits, the pooling
and servicing agreement, the MLS, it would show that Ocwen, who became
1 The record indicates that GMAC ResCap, Inc., was another loan servicing
company like Ocwen.

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servicing this loan, would be able to 	enforce the terms 	of the note;
correct?,” the loan analyst responded, “[t]hat’s correct.”
At the trial’s conclusion, the trial court entered final judgment for
HSBC. 	The trial court found the “combination of evidence” which HSBC
had presented “to be persuasive in establishing” HSBC’s standing to
enforce 	the 	note 	by 	a 	preponderance 	of 	the 	evidence, 	including 	the
evidence of the note copy filed in the prior Wells Fargo litigation, the four
mortgage assignments, the PSA “naming all the relevant parties and
referencing the subject property[,]” the LNA attesting that HSBC acquired
ownership of the note from MERS as a nominee of ABC (which it linked to
the “established fact that ABC was in possession of the original note” as
established by the Wells Fargo litigation), and the loan analyst’s testimony
that HSBC acquired ownership of the note from an entity entitled to
enforce the note. 	This appeal follows.
Analysis
“A trial court’s determination of whether a party has reestablished a
lost note is reviewed for sufficiency of the evidence.” 	Lewis v. US Bank
Nat’l Ass’n, 298 So. 3d 72, 75 (Fla. 4th DCA 2020) (quoting Home Outlet,
LLC v. U.S. Bank Nat’l Ass’n, 194 So. 3d 1075, 1077 (Fla. 5th DCA 2016)).
“We review the sufficiency of the evidence to prove standing to bring a
foreclosure action de novo.” Sosa v. U.S. Bank Nat’l Ass’n, 153 So. 3d 950,
951 (Fla. 4th DCA 2014) (citation omitted).
A plaintiff “must prove that it had standing to foreclose
when it filed the complaint.” 	Cartwright v. LJL Mortg. Pool,
LLC, 185 So. 3d 614, 615 (Fla. 4th DCA 2016). 	“A party may
establish standing by showing that it was entitled to enforce
the note at the time it filed suit.” JPMorgan Chase Bank Nat’l
Ass’n v. Pierre, 215 So. 3d 633, 636 (Fla. 4th DCA 2017)
(quoting U.S. Bank Nat’l Ass’n v. Becker, 211 So. 3d 142, 144
(Fla. 4th DCA 2017)).
“A person entitled to enforce an instrument is: (1) [t]he
holder of the instrument; (2) [a] nonholder in possession of the
instrument who has the rights of a holder; or (3) [a] person not
in possession of the instrument who is entitled to enforce the
instrument pursuant to s[ections] 673.3091 or [ ] 673.4181(4),
[Florida Statutes].” 	Id. (quoting Becker, 211 So. 3d at 144)
(first and second alterations in original). 	Standing may also
be 	established 	“by 	either 	an 	assignment 	or 	an 	equitable
transfer of the [note and] mortgage prior to the filing of the

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complaint.” 	McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79
So. 3d 170, 173 (Fla. 4th DCA 2012).
Lewis, 298 So. 3d at 75. 	By Florida statute,
(1) 	A person not in possession of an instrument is entitled to
enforce the instrument if:
(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.
§ 673.3091, Fla. Stat. (2018). 	“A party seeking to reestablish a lost note
may meet the statutory requirements ‘either through a lost note affidavit
or by testimony from a person with knowledge.’” 	Lewis, 298 So. 3d at 76
(quoting Sabido v. Bank of N.Y. Mellon, 241 So. 3d 865, 866 (Fla. 4th DCA
2017)). 	“The lost note affidavit or testimony need not establish exactly
when, how, and by whom the note was lost. 	It must, however, prove the
party seeking reestablishment of the note acquired ownership from a party
with the right to enforce the note when lost. 	At a minimum then, the
evidence must establish who had the right to enforce the note when it was
lost and how the party seeking reestablishment obtained ownership.” 	Id.
(quoting Sabido, 241 So. 3d at 867) (citations omitted).
Like the alleged creditors in Lewis and Sabido, HSBC here failed to
establish that it acquired ownership of the note from a party entitled to
enforce it at the time it was lost. The evidence admitted at trial established
that MERS assigned the note to Wells Fargo and then Wells Fargo filed a
blank-endorsed copy of the note in the prior litigation. 	No evidence
established that Wells Fargo ever transferred ownership of the note to any
other party after that point.

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Three subsequent transfers of the mortgage only occurred, including
one “from MERS as nominee of ABC to HSBC,” which was the basis for the
Ocwen LNA’s claim that HSBC acquired ownership of the note from MERS
as a nominee of ABC. 	But as we have explained on numerous occasions,
“the mortgage follows assignment of the note. 	The assignment of a
mortgage cannot serve as evidence that the note was also transferred, even
though a transfer of the note usually will serve as a transfer of the
mortgage.” 	Jelic v. BAC Home Loans Servicing, LP, 178 So. 3d 523, 525
(Fla. 4th DCA 2015) (citing Bristol v. Wells Fargo Bank, Nat’l Ass’n, 137 So.
3d 1130, 1133 (Fla. 4th DCA 2014)). 	“A bank does not have standing to
foreclose where it relies on an assignment of the mortgage only.” 	Id.
(quoting Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th
DCA 2015)).
To recap, the evidence includes an April 2009 assignment of the note
by MERS to Wells Fargo, followed by a notice of filing showing that Wells
Fargo possessed the endorsed note and used it in litigation in June 2009.
After that, the record shows no more assignments or confirmed sightings
of the note. 	Thus, Wells Fargo is the last party whose ownership of the
note 	can 	be 	confirmed, 	and 	no 	admitted 	evidence 	supported 	the
conclusion that HSBC acquired ownership of the note, whether directly or
indirectly, from Wells Fargo after that.
The crucial flaws in the chain of title are that neither MERS’s 2012
assignment of the mortgage to HSBC nor Wells Fargo’s 2013 assignment
of the mortgage to HSBC mentioned the note. 	Without either of these
links, there is simply no evidence that any party that held the note, or the
right to enforce it, ever transferred it to HSBC. 	Further, the failure of
MERS’s 2012 assignment to mention the note disproves the claim in the
non-testifying employee’s LNA that HSBC acquired ownership of the note
from MERS.
The loan analyst’s testimony did not salvage HSBC’s claim. She initially
testified 	that 	HSBC 	obtained 	the 	note 	from 	Deutsche Bank, 	with 	no
explanation of how or when the note was transferred from Wells Fargo to
Deutsche Bank. 	But following further questioning, she revealed that the
file which HSBC had received from Deutsche Bank did not contain the
note, either. 	According to a notation admitted at trial and the loan
analyst’s testimony about that notation, the file instead contained another
LNA, this time written by Deutsche Bank. 	This earlier LNA was not
admitted at trial and does not appear in the appellate record. 	Thus, we
cannot determine on what basis Deutsche Bank thought it had standing
to enforce the note. 	The loan analyst could not say which party held, or
had standing to enforce, the note when it was lost.

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Conclusion
HSBC did not provide sufficient evidence to establish “who had the
right to enforce the note when it was lost and how the party seeking
reestablishment obtained ownership.” 	Lewis, 298 So. 3d at 76 (quoting
Sabido, 241 So. 3d at 867). Thus, HSBC did not establish that it “acquired
ownership from a party with the right to enforce the note when lost.” 	Id.
(quoting Sabido, 241 So. 3d at 867). 	We therefore reverse the final
judgment 	and 	remand 	with 	instructions 	for 	the 	trial 	court 	to 	enter
judgment for the Ryans.
Reversed and remanded with instructions.
KLINGENSMITH and SHEPHERD, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.