The 2023 Florida Statutes
The question of whether section 673.3091 displaces section 71.011 as to the standards for reestablishing a note is a debatable one. At least one court views it as having this effect. See Mason v. Rubin, 727 So.2d 283, 284 (Fla. 4th DCA 1999) (stating that “[e]stablishing a lost negotiable instrument is governed by ... section 673.3091... [which] contains more stringent requirements than [section 71.011 ].”) (emphasis added). The contrary argument is that a note can be reestablished under the plain language of section 71.011, but that its enforcement is governed by section 673.3091. This issue cannot be resolved given the lack of preservation of the issue in this case (and the absence of fundamental error), but ought to be addressed in a future case to provide clear guidance to trial courts.
Section 90.954(1), Florida Statutes (2008), provides, inter alia, that the original of a writing is not required and other evidence of its contents is admissible when "all originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith." Florida law expressly permits the introduction of parol evidence to prove the contents of a contract where the proponent provides a satisfactory explanation that the original contract was lost or destroyed. § 90.954(3), Fla. Stat. (2008); Ins. Co. of State of Pa. v. Genova Exp. Lines, Inc., 605 So.2d 941, 942-43 (Fla. 3d DCA 1992). As a general rule, the loss or unintentional destruction of a written document does not affect the validity of the transaction of which it is the evidence, or the rights and liabilities of the parties to the instrument. 35 Fla. Jur.2d Lost Destroyed Instruments Records § 4 (2009). While it would be preferable to reestablish the written instrument in the manner authorized by section 71.011, Florida Statutes (2008), the failure to do so is not fatal to ESIs attempt to enforce the agreement against LeJeune, provided that the trial court is satisfied as to its essential terms. O'Donovan…
We recognize that in Badra I, the trial court said it was re-establishing the note pursuant to section 71.011, Florida Statutes, rather than the statutory section relied on here by MERS. Nevertheless, the issue, whether the lost note is re-established, is the same, and it meets the identity of issues requirement for finding collateral estoppel. In either case, the essential issue is whether the lost note is legally enforceable.
We affirm an order denying Glynn's motion to vacate a judgment of foreclosure and his objection to clerk's sale. The mortgagee, First Union, acknowledged confusion in the record transfers of the note and mortgage. It sought to re-establish the note in count one of the complaint. Glynn never filed a motion or an answer in the trial court, thereby waiving any claim that First Union lacks standing. "There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver." Kissman v. Panizzi, 891 So.2d 1147, 1150 (Fla. 4th DCA 2005). In any event, the record reflects that First Union was in possession of the note at the time it was lost, and the trial court re-established the note pursuant to section 71.011, Florida Statutes.
As the owner of the note, whether it was lost or wrongfully retained by Netwide, Novastar could have sought to reestablish the note pursuant to Florida statutes. A party may enforce its rights by reestablishing the lost, stolen, or destroyed paper or instrument under the applicable statutes and then sue upon the reestablished instrument. See § 71.011, Fla. Stat. (2003). Instruments that may be reestablished include notes secured by mortgages, see Lovingood v. Butler Construction Co., 131 So. 126 (Fla. 1930); and promissory notes, see Bigelow v. Summers, 9 So. 690 (Fla. 1891).
We recognize that in O'Donovan v. Citibank, F.S.B. , 710 So.2d 654 (Fla. 3d DCA 1998), the court affirmed a summary judgment allowing foreclosure but reversed on the re-establishment claim where there was a question of fact as to whether the plaintiff could re-establish the terms of the promissory note under section 71.011(5).
The husband raises as his first point that the trial court erred in failing to reestablish the promissory note, which was lost. He argues that his proof complied with section 71.011, Florida Statutes (1995), which provides for establishing lost papers, records or files. Section 71.011 controls the establishment of lost documents "except when otherwise provided." The lost promissory note was a negotiable instrument. § 673.1041(1), Fla. Stat. (1993). Thompson v. First Union National Bank, 643 So.2d 1179 (Fla. 5th DCA 1994). Establishing a lost negotiable instrument is governed by a different statute, section 673.3091, Florida Statutes (1993). The latter statute contains more stringent requirements than the former, and the trial court correctly concluded that the husband did not satisfy section 673.3091.
We do reverse, however, the entry of summary judgment as to count two for the reestablishment of the promissory note. Upon the commendable and appropriate confession of error of the appellee, summary judgment was improvidently entered on this count where the appellee was unable to supply a substantial copy of the lost promissory note to prove its essential terms as is generally required by section 71.011 (5), Florida Statutes (1997). Whether the appellee's proffered proof of the note's essential terms was adequate for its reestablishment is a matter for determination by the trier of fact and should not be decided as a matter of law. See Gutierrez v. Bermudez, 540 So.2d 888, 891 (Fla. 5th DCA 1989). We therefore remand this count for trial.
The state filed a motion to reestablish the record, citing sections 71.011 and 71.031, Florida Statutes. The procedure followed by the state was a permissible one. The motion set forth the information specified by subsection 71.011 (5), including the date of filing of the information, the clerk's discovery that the document had been lost or destroyed, and the assertion that the copy of the information attached to the motion was an exact copy of the text of the original. In support, the motion cited the clerk's previously-filed affidavit.
. . . conflates the requirements of section 673.3091 with the right to reestablish a lost document under section 71.011 . . . Unlike section 673.3091, section 71.011 does create a standalone cause of action: A person desiring to . . . complaint are the only persons known to plaintiff who are interested for or against such reestablishment. § 71.011 . . . Deutsche Bank did not rely on section 71.011 in its foreclosure complaint. . . .
. . . Instead, section 71.011, Florida Statutes (2014), entitled “Reestablishment of papers, records, and files . . . The problem is that Nationstar did not rely on section 71.011 in the trial court proceedings and raised . . . The question of whether section 673.3091 displaces- section 71.011 as to the standards for reestablishing . . . [which] contains more stringent requirements than [section 71.011].”) (emphasis added). . . . The contrary argument is that a note can be reestablished under the plain language of section 71.011, . . .
. . . While it would be preferable to reestablish the written instrument in the manner authorized by section 71.011 . . .
. . . One of the court’s findings was a determination that the note was re-established pursuant to section 71.011 . . . In the earlier foreclosures, the mortgagee relied on section 71.011 in seeking to re-establish the note . . . recognize that in Badra I, the trial court said it was re-establishing the note pursuant to section 71.011 . . .
. . . of the note at the time it was lost, and the trial court re-established the note pursuant to section 71.011 . . .
. . . . § 71.011 (135-142) Intentional spoliation of evidence (143-145) Conversion (146-148) Unjust enrichment . . .
. . . See § 71.011, Fla. Stat. (2003). . . .
. . . State Street sought to establish the promissory note and mortgage under section 71.011, Florida Statutes . . . fact as to whether the plaintiff could re-establish the terms of the promissory note under section 71.011 . . . foreclosure even where the promissory note is not re-established, the Third District applied section 71.011 . . .
. . . Civil Practice and Remedies Code, and (2) Wrongful Death and Survival Action pursuant to §§ 71.001-71.011 . . .
. . . He argues that his proof complied with section 71.011, Florida Statutes (1995), which provides for establishing . . . Section 71.011 controls the establishment of lost documents “except when otherwise provided.” . . .
. . . substantial copy of the lost promissory note to prove its essential terms as is generally required by section 71.011 . . .
. . . See §§ 71.011(5), 71.031, Fla.Stat. (1995). . . . The state filed a motion to reestablish the record, citing sections 71.011 and 71.031, Florida Statutes . . . The motion set forth the information specified by subsection 71.011(5), including the date of filing . . . In response, the state unearthed sections 71.011 and 71.031, Florida Statutes, and filed its motion in . . . See § 71.011(5), Fla.Stat. . . .
. . . reestablish each of the non-competition agreements executed by Feld-man and Saavedra pursuant to section 71.011 . . . In other words, the court construed section 71.011 to mean that the reestablishment of the lost document . . . Section 71.011(4) provides in relevant part that: (a) Any paper, record or file reestablished has the . . . We agree with Carlsen that the plain language of section 71.011(4)(a) states only that upon the recording . . .
. . . . §§ 71.001-71.011, 71.021 (Vernon 1986), and that Texas law applies. . . .
. . . an adverse summary judgment entered in favor of appellee on his action brought pursuant to section 71.011 . . .
. . . . §§ 71.001-71.011 (Vernon 1986). . . . .
. . . the lost or destroyed note, was required to reestablish the note in a separate action under section 71.011 . . . The makers-payors argue that because section 71.011 and section 673.804 are in conflict and section 71 . . . .-011 was enacted after section 673.804, therefore section 71.011 prevailed over section 673.804. . . . without first re-establishing the lost, destroyed or stolen instrument in a separate action under section 71.011 . . .
. . . So.2d 396 (Fla. 5th DCA 1983) is distinguishable from the case before us because in Jarvis, section 71.011 . . . section 47.041, the county where the action was filed was arguably one of the counties where section 71.011 . . .
. . . . & REMEDIES CODE §§ 71.001-71.011 (Vernon 1985) ] for the interruption of the family relationship and . . .
. . . those instruments have been lost and the sellers seek to reestablish those documents under section 71.011 . . . Section 71.011(2), Florida Statutes (1981), provides that when reestablishment of a private paper is . . .
. . . . § 71.011, F.S.A. . . .