CopyCited 17 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 16267, 2010 WL 4226399
...ote and mortgage in question in order to proceed with a foreclosure action." Lizio v. McCullom,
36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section
673.3091, Florida Statutes....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 8265, 2014 WL 2378662
...ng the verdict. Crawford Residences, LLC v. Banco Popular N. Am.,
88 So.3d 1017, 1019 (Fla. 2d DCA 2012). This court’s Correa opinion is instructive.
118 So.3d 952 . In Correa , the bank failed to present evidence of the terms of a lost note under section
673.3091(2), Florida Statutes (2007), or its right to enforce the lost note under section
673.3091(l)(b)....
CopyCited 15 times | Published | Florida 3rd District Court of Appeal | 2002 WL 2008195
...urt made factual findings, but it also erred in its legal analyses. A. Entitlement to Sue on a Lost Note We first address the trial court's ruling that "the plaintiff could not demonstrate his entitlement to enforce a lost note under Florida Statute § 673.3091 because Plaintiff is unable to show (i) he was in possession of the alleged instrument and entitled to enforce it when loss of possession occurred; and (ii) that the loss of possession was not the result of a transfer." 1. Whether the Note Was Lost/Destroyed The trial court erred in granting summary judgment because Mendelson does not know whether the note was lost or destroyed. See § 673.3091(1), Fla. Stat. (1993). Section 673.3091(1)(c) provides that the instrument must be lost, destroyed or stolen; in short, the person seeking to enforce the instrument must not be able to obtain the instrument....
...2. Whether Mendelson Had Possession When the Note Was Lost The trial court erred as a matter of law in concluding that Mendelson is not entitled to enforce the note because he did not have physical possession of the note when the loss occurred. See § 673.3091(1), Fla....
..., as for example, where an agent holds property for his principal."). 3. Whether the Loss Was the Result of a Transfer Next, the trial court erred in ruling that Mendelson cannot prove that loss of the 1995 note was not the result of a transfer. See § 673.3091(1)(b), Fla....
CopyCited 15 times | Published | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 18863, 2004 WL 2827080
...*727 business with any necessary endorsement or assignment. A promissory note is clearly a negotiable instrument within the definition of section
673.1041(1), and either the original must be produced, or the lost document must be reestablished under section
673.3091, Florida Statutes (2002)....
...Indeed, if the foreclosing party alleges that the note is lost, destroyed or stolen, the trial court is authorized by statute to take the necessary actions to protect the party required to pay the note against loss that might occur by reason of a claim by another party to enforce the instrument. See section 673.3091(2), Fla....
CopyCited 12 times | Published | Florida 5th District Court of Appeal
...ote and mortgage in question in order to proceed with a foreclosure action." Lizio v. McCullom,
36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section
673.3091, Florida Statutes (2010)....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2003 WL 22799148
...126 (1930); and *799 promissory notes, see Bigelow v. Summers,
28 Fla. 759,
9 So. 690 (1891). Moreover, in the case of a lost, stolen, or destroyed negotiable instrument, a party may enforce the negotiable instrument without reestablishing it. See §
673.3091, Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2008 WL 4568031
...Mortgage Electronic Registration Systems, Inc. (MERS), the mortgagee by assignment, appeals a summary judgment entered in favor of the mortgagor, the Badras. The trial court concluded that the promissory note, which was lost, cannot be re-established under the 2004 version of section 673.3091, Florida Statutes, notwithstanding an earlier final judgment of foreclosure of this note and mortgage (reversed on other grounds) that re-established the note....
...Finally, on January 21, 2003, MERS, as successor in interest by assignment, instituted the instant action to re-establish the note and to foreclose on the mortgage. In granting summary judgment in favor of the Badras, the trial court found the lost note unenforceable as a matter of law. In this action, MERS relied on section 673.3091, Florida Statutes....
...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. The 2003 version of section 673.3091, which we apply here, required a person seeking to enforce a lost note to have been in possession of the instrument when it was lost....
...when it was lost. The earlier version provides that "a person not in possession of an instrument is entitled to enforce the instrument if: The person was in possession of the instrument and entitled to enforce it when loss of possession occurred[.]" § 673.3091(1)(a), Fla. Stat. (2003) (emphasis added). The 2003 version of section 673.3091 provides, in pertinent part: (1) A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred; (b...
...nably 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....
...l summary judgment (as to the lost note) in favor of MERS. We remand for *1040 further proceedings consistent with this opinion. Reversed and Remanded. GROSS and TAYLOR, JJ., concur. NOTES [1] We need not resolve, here, whether the 2004 amendment to section 673.3091 was substantive, as argued by the Badras, and cannot be applied retrospectively to this action, filed in January 2003....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2012 WL 511288, 2012 Fla. App. LEXIS 2452
...The judgment would also have to be reversed even if entered in favor of appellee, The Bank of New York Mellon, as Successor Trustee Under Novastar Mortgage Funding Trust 2005-3 ("Mellon"). Mellon sought in the complaint to reestablish the note and recover on it. See § 673.3091, Fla....
...(2010). This required Mellon to show it was entitled to enforce the note when it lost the instrument, or that it directly or indirectly acquired ownership from a person who was *555 entitled to enforce the instrument when loss of possession occurred. § 673.3091(1), Fla....
...HSBC Mortg. Servs., LLC,
79 So.3d 778 (Fla. 4th DCA 2011). The trial court was also required to address the issue of providing adequate protection to Beaumont against loss that might occur by reason of a claim by another person to enforce the instrument. §
673.3091(2), Fla....
...NOTES [1] A negotiable instrument is enforceable by: (1) the holder of the instrument, (2) a nonholder in possession who has the rights of a holder, or (3) a person not in possession of the instrument who is entitled to reestablish a lost, destroyed or stolen instrument pursuant to section
673.3091, or who has paid or accepted a draft by mistake as described in section
673.4181....
CopyCited 7 times | Published | District Court, S.D. Florida | 2006 U.S. Dist. LEXIS 94865, 2006 WL 3102818
...A party suing on a promissory note whether just on the note itself or together with a claim to foreclose on a mortgage securing the note must therefore be in possession of the original of the note or reestablish the note pursuant to Fla. Stat. § 673.3091....
...aragraphs 1 and 2 of the original note but states that all other terms and conditions in the original note remain unchanged and in full force and effect. Furthermore, neither Dasma or Ribonnet has made any attempt to reestablish the note pursuant to § 673.3091....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 15582
...A
holder is a “person in possession of a negotiable instrument that is payable either to
bearer or to an identified person that is the person in possession.” §
671.201(21),
Fla. Stat. (2009). “A plaintiff must tender the original promissory note to the trial
court or seek to reestablish the lost note under section
673.3091, Florida Statutes.”
Servedio v....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2003 WL 21697417
...action to enforce the note or foreclose the mortgage. The right to enforce the lost instrument was not properly assigned where neither State Street nor its predecessor in interest possessed the note and did not otherwise satisfy the requirements of section 673.3091, Florida Statutes, at the time of the assignment....
...Joymar Assocs.,
767 So.2d 549, 551 (Fla. 3d DCA 2000). A limited exception applies for lost, destroyed, or stolen instruments, where it is shown that "the person was in possession of the instrument and entitled to enforce it when loss of possession occurred." §
673.3091, Fla. Stat. (2002). Section
673.3091 provides, in part: (1) A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred; *792 (b) The...
...yed, its whereabouts cannot be determined, or it is the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. Here, it is unrefuted that State Street was unable to meet the requirement of section 673.3091....
...In Mason v. Rubin,
727 So.2d 283 (Fla. 4th DCA 1999), the appellant brought a foreclosure action on a second mortgage, the trial court denied the foreclosure, and this court affirmed on the basis that the appellant had failed to establish the lost note under section
673.3091. Likewise, here, where State Street failed to comply with section
673.3091, the trial court correctly entered summary judgment denying its foreclosure claim....
...When the notes were assigned to the appellee, the right to enforce the instruments was assigned to him as well. Id. at 430. In contrast, here, the undisputed evidence was that EMC, the assignor, never had possession of the notes and, thus, could not enforce the note under section 673.3091 governing lost notes. Because EMC could not enforce the lost note under section 673.3091, it had no power of enforcement which it could assign to State Street. Were we to allow State Street to enforce the note because some unidentified person further back in the chain may possess the note, it would render the 673.3091 rule meaningless....
...ory note under section
71.011(5). Although it appears that O'Donovan permits foreclosure even where the promissory note is not re-established, the Third District applied section
71.011 governing enforcement of lost papers, records, or files, and not section
673.3091. This court, however, has concluded that lost promissory notes are negotiable instruments and are actually governed by section
673.3091....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 18135, 2015 WL 7780850
...tly entered an in rem final judgment of foreclosure in favor of Fannie Mae in the amount of $257,906.72. *1114 Failed Reestablishment of Lost Note Appellant correctly argues that Fannie Mae failed to reestablish the supposedly lost note. Pursuant to section 673.3091(1), Florida Statutes (2014), a person not in possession of an instrument is entitled to enforce the, instrument if the following conditions are met: (a) The person seeking to enforce the instrument was entitled to enforce the instrum...
...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 riot amenable to service of process. , ; § 673.3091(l)(a)-(c), Fla. Stat. (2014). The party seeking to reestablish the note “must prove the terms of the instrument and the [party’s] right to enforce the instrument.”; § 673.3091(2), Fla. Stat. (2014), Additionally, the trial, court must determine that the “person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument.” § 673.3091(2), Fla....
....into evidence; was dated seven months after the complaint was filed and .was, thus, insufficient to establish standing. Fannie Mae was required to “tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091” in....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2015 WL 2129505
...Under section
673.3011, Florida Statutes (2013), a person entitled to enforce the note and foreclose on a mortgage is the holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce under section
673.3091, Florida Statutes....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 42 U.C.C. Rep. Serv. 2d (West) 764, 2000 Fla. App. LEXIS 10753, 2000 WL 1188313
...Marevista Apartments, M.B., Inc.,
596 So.2d 526 (Fla. 3d DCA 1992). A limited exception applies for lost, destroyed, or stolen instruments, where it is shown that "the person was in possession of the instrument and entitled to enforce it when loss of possession occurred." §
673.3091, Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2012 WL 932991, 2012 Fla. App. LEXIS 4356
...t surrender the original mortgage and note and (2) because Chase could not reestablish the mortgage and note without having asserted a lost note claim and without having introduced sufficient evidence to satisfy the requirements of such a claim. See § 673.3091(2), Fla....
...Other than representations made in the records custodian's stricken affidavit, there is no evidence that the Guerreros will be "adequately protected against loss that might occur by reason of a claim by another person to enforce the[se] instrument[s]" as required by section 673.3091 of the Florida Statutes. See § 673.3091(2), Fla....
...propriate. Reversed and remanded with instructions. RAMIREZ, J., concurs in result only. NOTES [1] An Assignment of Mortgage evidencing MERS' assignment of its interest as servicing agent for the lender to Chase subsequently was filed of record. [2] Section 673.3091 of the Florida Statutes governing reestablishment of lost instruments provides: Enforcement of lost, destroyed, or stolen instrument (1) A person not in possession of an instrument is entitled to enforce the instrument if: (a) The pe...
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Bank filed an unverified complaint seeking to reestablish a lost promissory note and to foreclose the mortgage on Feltus's home. U.S. Bank attached to the complaint a copy of the note and the mortgage, but both documents showed the lender to be Countrywide Bank, N.A. In the count to reestablish the note pursuant to section 673.3091, Florida Statutes (2009), U.S....
...[2] In addition, the complaint failed to allege that U.S. Bank "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." § 673.3091(a)....
CopyCited 4 times | Published | District Court, M.D. Florida | 2010 WL 5137601
...in question in order to proceed with a foreclosure action." Lizio v. McCullom,
36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under Florida Statute Section
673.3091....
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 2011 WL 1883031
...§
673.3011 states: The term "person entitled to enforce" an instrument means: (1) the 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 Section
673.3091 or Section
673.4181....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2002 WL 1370114
...We deny the motion for rehearing but withdraw our previously issued opinion and substitute the following in its place. Appellant claims that the court erred in entering a final judgment of foreclosure on real property where appellee did not produce the original note and mortgage and did not comply with section 673.3091, Florida Statutes (1997), concerning lost instruments....
...On motion for rehearing, the judge also stated his belief that the mortgages were actually voided after the final judgment of dissolution to try to avoid the consequences of HPS' assignments to appellee. On appeal, appellant claims that appellee could not comply with section 673.3091, controlling the reestablishment of a lost negotiable instrument, because appellee was never in possession of the instrument....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 WL 69575
...vided." 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....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 12026, 2015 WL 4769304
...The trial court ruled that, because the Bank had possession of the note, it was entitled to enforce it, and therefore, the Bank presented a prima facie case. The court then entered final judgment in favor of the Bank. On appeal, the Boumarates argue that the Bank failed to prove its entitlement to enforce the lost note under section 673.3091, Florida Statutes (2014)....
...loss was not the result of a transfer or lawful seizure, and that the note could not be found. 2 A plaintiff seeking to foreclose a mortgage must tender the original promissory note to the trial court or seek to reestablish the lost note pursuant to section
673.3091, Florida Statutes. Gee v. U.S. Bank Nat’l Ass’n,
72 So.3d 211 , 213 (Fla. 5th DCA 2011). Section
673.3091 sets out when a person not in possession of a negotiable instrument may enforce the instrument: (1) A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person seeking to enforce the instrumen...
...The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means. § 673.3091 (l)-(2), Fla....
...For example, Boumarate I states that the Bank must prove “the circumstances of [the Note’s] loss.” The Bouma-rates interpret this to mean that the Bank must prove exactly when, how, and by whom the note was lost. But the statute requires no such proof. See § 673.3091, Fla....
...Menendez,
830 So.2d 124, 127 (Fla. 3d DCA 2002) (“There is no requirement that [plaintiff] prove exactly how he lost possession of the note.... ”). Instead, the plaintiff must prove only that it was entitled to enforce the instrument when the loss of possession occurred. §
673.3091(l)(a), Fla....
...when it was lost, and produced no evidence of ownership, due to the transfer from Novastar to Mellon.” (citation omitted)). The statute does require, however, that the plaintiff prove that it was entitled to enforce the note when it was lost. See § 673.3091(l)(a), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 16918, 2015 WL 7008174
...“The standard of this court’s review of the evidence to prove standing to bring a foreclosure action is de novo.” Ham v. Nationstar Mortg., LLC,
164 So.3d 714, 717 (Fla. 1st DCA 2016); Pennington v. Ocwen Loan Servicing, LLC,
151 So.3d 52, 53 (Fla. 1st DCA 2014). A finding that a lost note is reestablished, under section
673.3091, Florida Statutes, is reversible upon the appellate court’s deter-, mination of a failure of proof. See Correa v. U.S. Bank, N.A.,
118 So.3d 952 (Fla. 2d DCA 2013). On December 16, 2008, plaintiff Wacho-via Bank, N.A. filed its complaint to rees *418 tablish a lost promissory note, under section
673.3091, Florida Statutes, and for foreclosure on the mortgage securing that lost note....
...In its complaint, Wachovia agreed to indemnify the defendants if any other party attempted to enforce the lost note after Wachovia obtained a final judgment. Accordingly, the complaint alleged the statutory cause of action to reestablish a lost note under section 673.3091(1). Section 673.3091(2), Florida Statutes, provides that “[a] person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person’s right to enforce the instrument.” As proof of the terms of the instrument, Wachovia attached copies of the note and mortgage to its complaint....
...been proved upon a showing that Wachovia possessed the note, as indorsed, on December 16, 2008, when the complaint was filed. However, Wachovia specifically alleged that it did not possess the note and was seeking to reestablish, a lost note, under section 673.3091....
...3d DCA 2012) (testimony of employee of current servicer of mortgage and of records custodian of plaintiffs counsel’s office insufficient proof to reestablish lost note; final judgment of foreclosure reversed and' remanded). Wells Fargo needed to prove Wachovia was entitled to enforce the note when possession was lost. § 673.3091(1)(a), Fla; Stat....
...any other than J.P; Morgan Chase. The bare affirmations by Wells Fargo’s only witness were insufficient to prove Wachovia’s, and thus Wells Fargo’s, entitlement to reestablish' a lost note and then enforce that note under sections
673.3011 and
673.3091....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 9682, 2016 WL 3452532
...reviewed for sufficiency of the evidence. Correa v. U.S. Bank N.A.,
118 So. 3d 952, 956
(Fla. 2d DCA 2013). An appellate court may reverse on finding a failure of proof. Seidler
v. Wells Fargo Bank, N.A.,
179 So. 3d 416, 417 (Fla. 1st DCA 2015). Section
673.3091,
Florida Statutes (2012), sets out the requirements for reestablishing a lost note....
...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....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2012 WL 2359656, 2012 Fla. App. LEXIS 10101
...Thus, the party seeking foreclosure must present evidence that it holds the note and mortgage in question in order to proceed with its foreclosure action. Id. A plaintiff must tender the original promissory note to the trial court or seek to reestablish the note under section 673.3091, Florida Statutes (2010)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 13211, 2016 WL 4540805
...he note constructive possession sufficient to establish standing as the note’s holder. See Caraccia v. U.S. Bank, Nat’l Ass’n,
185 So.3d 1277, 1279 (Fla. 4th DCA 2016). U.S. Bank met the statutory requirements of re-establishing the lost note. Section
673.3091(l)(a)-(c), Florida Statutes (2014) provides: (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 los...
...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. A party seeking enforcement under subsection (1) must prove the terms of the note and the party’s right to enforce it. § 673.3091(2)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 13461, 2014 WL 4249747
...Nationstar attached a summary of the original promissory note’s contents and a copy of the original mortgage. However, a copy of the note was not attached to the complaint. Count two sought to reestablish a lost or destroyed promissory note under section 673.3091, Florida Statutes (2008)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 15428
...e and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom,
36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section
673.3091, Florida Statutes (2010)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...As no motion
to strike was formally made requesting an order from the court, the case was at
issue and properly set for trial.
With regard to the remaining issue, i.e. that there was insufficient evidence
to support the indemnity required under section 673.3091(2) of the Florida
Statutes, our review is precluded by Ms....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 16944, 2014 WL 5284995
...The homeowner contends that the trial court reversibly erred in concluding that the bank sustained its burden of proving that it possessed standing to proceed on its lost note theory because the bank failed to submit any evidence on the issue of adequate protection. We agree. 1 Section 673.3091, Florida Statutes (2013), governs the enforcement of lost notes: 673.3091....
...Section
702.11(1), Florida Statutes (2013), explains the concept of adequate protection:
702.11. Adequate protections for lost, destroyed, or stolen notes in mortgage foreclosure (1) In connection with a mortgage foreclosure, the following constitute reason *556 able means of providing adequate protection under s.
673.3091, if so found by the court: (a) A written indemnification agreement by a person reasonably believed sufficiently solvent to honor such an obligation; (b) A surety bond; (c) A letter of credit issued by a financial institution; (d) A deposi...
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 6973, 2016 WL 2596015
...Under section
673.3011, Florida Statutes (2011), a person entitled to enforce the
note and foreclose on a mortgage is the holder of the note, a non-holder in possession
of the note who has the rights of a holder, or a person not in possession of the note who
is entitled to enforce under section
673.3091, Florida Statutes....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2015 WL 2189768
...icient to support the final
judgment, we reverse.
The lawsuit commenced on February 7, 2008, upon the filing of the
complaint by Aurora Loan Services, LLC. In Count I, Aurora alleged that it
sought to “reestablish a promissory note under Section 673.3091, Florida Statutes,”
that it was the owner of the note, and that it “was in possession of the promissory
note and was entitled to enforce it when loss of possession occurred.” Aurora
specifically alleged that the “note is n...
...The amended complaint filed in June of 2011
included an attached corporate assignment dated April 9, 2008, but that attachment
did not establish that an assignment had occurred as of February 7, 2008, the filing
date of the initial complaint. Aurora’s lost note allegations in the original
complaint, pursuant to section 673.3091, Florida Statutes, were never proved and
were abandoned in the amended complaint....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2017 WL 378593, 2017 Fla. App. LEXIS 848
...2014).
3
DCA 2002) (citing Wimbledon Townhouse Condo. I Ass’n v. Wolfson,
510 So. 2d 1106,
1109 (Fla. 4th DCA 1987)).
In its action to reestablish the lost note, Appellant was required to satisfy the
requirements detailed in section
673.3091, Florida Statutes (2015), to prevail....
...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(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2012 Fla. App. LEXIS 541, 2012 WL 126572
...gan Chase, as Trustee. Absent testimony from a witness with knowledge, it cannot be determined exactly when, between June 25, 1999, and the date of the filing of the foreclosure complaint in this case, the promissory note was lost or by what entity. Section 673.3091 of the Florida Statutes (2004), titled "Enforcement of lost, destroyed, or stolen instrument," provides as follows: (1) A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person seeking to e...
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Trust Company (Deutsche Bank). The Mielkes argue that the
complaint was time-barred because the statute of limitations had
run on the bank’s ability to enforce a lost note. Because we find
that the requirements for enforcing a lost note pursuant to
section 673.3091, Florida Statutes, do not create an independent
cause of action triggering a separate statute of limitations on a
mortgagee’s right to foreclose, we affirm.
I.
In 2005, the Mielkes executed a mortgage on a condominium
in Destin....
...Consequently, the
Mielkes claimed that the current complaint was time-barred
pursuant to section
95.11(2)(b), Florida Statutes. Deutsche Bank
responded that its count to reestablish the lost note was ancillary
to its mortgage foreclosure count.
The trial court denied summary judgment, finding that
section
673.3091, Florida Statutes, “clearly contemplates that an
action to re-establish a lost note is filed in connection with an
action to enforce the [n]ote.” Accordingly, the trial court held that
an “action under section
673.3091 is connected to an action for
Mortgage Foreclosure, and not a standalone cause of action.”
2
The Mielkes reasserted their statute of limitations defense at
trial....
...2d 540, 542, n.6 (Fla. 1991)). Accordingly,
“[a] cause of action accrues when the last element constituting
the cause of action occurs.” §
95.031(1), Fla. Stat.
The Mielkes contend that the last element in seeking the
enforcement of a lost note pursuant to section
673.3091 is the
2 The Second District alluded to this issue in Peters v....
...The only
time that there’s going to be a claim resulting from a lost
instrument is when it needs to be enforced and that is
when it goes into default.
Id. at 177 (emphasis added).
4
plaintiff’s awareness that the note is lost. We reject this
interpretation. Section 673.3091 provides as follows:
(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 lo...
...o
service of process.
(2) A person seeking enforcement of an instrument
under subsection (1) must prove the terms of the
instrument and the person’s right to enforce the
instrument.
(emphasis added).
The language of section
673.3091 demonstrates that it is not
intended to create a cause of action to reestablish a lost note.
Rather, it only recognizes that an entity not possessing an
instrument is still entitled to enforce it if the entity meets certain
conditions. The cause of action is the enforcement itself; section
673.3091 only sets forth special requirements if the plaintiff does
not possess the instrument.
This interpretation is bolstered by the language of section
673.3011, Florida Statutes. The statute defines a person entitled
to enforce an instrument to include “[a] person not in possession
of the instrument who is entitled to enforce the instrument
pursuant to s.
673.3091 . . . .” §
673.3011(3), Fla. Stat.
Accordingly, sections
673.3011 and
673.3091 make clear that the
right to enforce a lost note, in the foreclosure context, travels
5
with the breach that triggers the need to seek enforcement—
default by a mortgagor. As a result, section
673.3091 does not
create a standalone cause of action apart from a breach.
The Mielkes’ argument conflates the requirements of section
673.3091 with the right to reestablish a lost document under
section
71.011, Florida Statutes. Unlike section
673.3091, section
71.011 does create a standalone cause of action:
A person desiring to establish any paper, record or
file, except when otherwise provided, shall file a
complaint in chancery setting forth that the paper,...
...Pursuant to section
673.3011, Deutsche Bank had to
demonstrate that it was the proper holder of the note before they
could foreclose on the Mielkes’ condominium. Since they did not
possess the original note, Deutsche Bank had to demonstrate
that it complied with section
673.3091 to show that it was the
holder of the note pursuant to section
673.3011(3). Therefore, the
right to enforce the lost note did not accrue until the Mielkes
defaulted.
6
IV.
Section
673.3091, Florida Statutes, does not create a cause of
action separate from a mortgagee’s right to foreclosure....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 1569, 2016 WL 455737
...the instrument is adequately protected against loss that
might occur by reason of a claim by another person to
enforce the instrument. Adequate protection may be
provided by any reasonable means.
§ 673.3091, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 19500, 2015 WL 9491875
...(2013), a person entitled to enforce the . note and foreclose on a mortgage is the holder of the note, a non-holder in possession of the note who has the rights of a holder, or a person not in possession of the note who is entitled to enforce under section 673.3091, Florida Statutes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...note under section
1 According to the answer brief, the appellee is “The Bank of New York Mellon
f/k/a The Bank of New York, Successor to JP Morgan Chase Bank, National
Association, as Trustee for CWalt, Inc., Alternative Loan Trust 2007-J1.”
673.3091, Florida Statutes.” Servedio v. U.S. Bank Nat. Ass’n,
46 So. 3d
1105, 1107 (Fla. 4th DCA 2010). Here, because the Bank did not tender
the original promissory note, it could not enforce the note unless it
reestablished the note pursuant to the lost note statute.
Section
673.3091(1), Florida Statutes (2016) provides:
(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...
...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.
Thus, subsection 673.3091(1)(a) required that the Bank prove one of two
things, that it either
1....
...-2-
(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. 673.3091 or
s....
...(2016).
Here, the original lender was Washington Mutual Bank. Because the
note was not indorsed, later transferees were not entitled to enforce it as
holders. §
671.201(21)(a), Fla. Stat. (2016). The Bank was then required
to comply with the second option in section
673.3091(1)(a) set forth
above―the Bank had to establish the chain of transactions leading to its
acquisition of ownership, so that it could show that it “acquired
ownership” from a person “entitled to enforce the instrument when loss...
...HSBC Bank USA, N.A.,
172 So.
3d 535, 537 (Fla. 5th DCA 2015). The plaintiff was required, however, to
prove that it “acquired ownership of the instrument from a person who
was entitled to enforce the instrument when loss of possession occurred.”
§
673.3091(1)(a)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 4033634, 2013 Fla. App. LEXIS 12482
...appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”). For the requirements to reestablish a lost note we look to section 673.3091, Florida Statutes (2007). Section 673.3091(1) provides as follows: (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 occurre...
...nably 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. Section 673.3091(2) requires a person seeking enforcement of a lost, destroyed, or stolen instrument to “prove the terms of the instrument and the person’s right to enforce the instrument” under section 673.3091(1)....
...unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument.” Id. In this case, U.S. Bank proved that the note was lost under section 673.3091(l)(c) and that it “acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred” under section 673.3091(l)(a). However, U.S. Bank failed to prove the terms of the note under section 673.3091(2) or its right to enforce the note under section 673.3091 (l)(b)....
...Further, nothing in the record reflects any admission by Correa as to the terms of the note. Under subsection (l)(b), U.S. Bank was required to prove that “[t]he loss of possession was not the result of a transfer by the person or a lawful seizure.” § 673.3091(1)(b)....
...In fact, when counsel for U.S. Bank asked Gomez whether he knew if the note was ever assigned or transferred to anyone else, Gomez replied that he did not. Cf. Deakter v. Menendez,
830 So.2d 124, 128 (Fla. 3d DCA 2002) (concluding that the plaintiff met the requirements of section
673.3091(l)(b) by averring under oath that the original note was lost or destroyed and he did not assign or transfer it)....
...We also note that the trial court erred by failing to determine whether "the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument,” as required by section 673.3091(2)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 90 U.C.C. Rep. Serv. 2d (West) 665, 2016 Fla. App. LEXIS 12795, 2016 WL 4445941
...not in possession of the note because the note has been lost or was mistakenly surrendered, or canceled as paid, but who has the right to enforce the instrument as either holder or nonholder in possession with the rights of a holder. §§
673.3011,
673.3091, Fla....
...count, and alleging the note was lost at the time of filing the complaint in another count. 3 Therefore, as Appellant correctly argues, at trial, in order to establish standing to file suit, in addition to establishing the lost note requirements of section 673.3091, Lynx was required to show that Liquidation lost possession of the note, but still retained the right to enforce the note at the time the complaint was filed....
...as filed, Lynx would have to establish that Liquidation had possession of the note with a blank indorsement prior to suit being filed, but lost possession of the note under circumstances that would not negate its right to enforce. See §§
673.3011,
673.3091, Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2017 WL 1277737, 2017 Fla. App. LEXIS 4579
...Deutsche Bank needed to prove that it "was entitled to enforce the instrument when loss
of possession occurred, or ha[d] directly or indirectly acquired ownership of the
instrument from a person who was entitled to enforce the instrument when loss of
possession occurred." § 673.3091(1)(a), Fla....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 19 Fla. L. Weekly Fed. B 90, 2005 Bankr. LEXIS 2100, 2005 WL 2952601
...The only fact relevant which appears from the Affidavits is that the creditors are unable to produce the promissory notes in question. Because these promissory notes are negotiable instruments, for a party to enforce a lost, destroyed or stolen instrument, it must comply with Florida Statute 673.3091....
CopyPublished | Florida 3rd District Court of Appeal
...5th DCA 2017) (holding: “‘A person entitled to enforce the note and
foreclose on a mortgage is the holder of the note, a non-holder in possession of the
note who has the rights of a holder, or a person not in possession of the note who is
entitled to enforce under section 673.3091, Florida Statutes.’” (quoting Gorel v.
Bank of N.Y....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Mar 7, 2024
...surance to the person who, by the policy, is the proper recipient,
the payment is a discharge of the liability of the insurer. . . . The
8 The “lost, destroyed, or stolen instruments” UCC provision of § 3-309 (Fla.
Stat. § 673.3091) is not applicable here.
USCA11 Case: 22-13338 Document: 56-1 Date Filed: 10/30/2024 Page: 18 of 18
18 Opinion of the Court 22-13338
fact that a third party unlawfully c...
CopyPublished | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 15547
...The absence of a named recipient rendered it an indorsement in blank, making the note payable to bearer and negotiable by possession alone. §
673.2051(2), Fla. Stat. Deutsche Bank alleged in Count I that it did not possess the original note at the time, but had possessed it in the past and lost such possession. §
673.3091, Fla....
CopyPublished | Florida 5th District Court of Appeal
...In December 2014, Nationstar filed a complaint against Ms. Wisman for mortgage
foreclosure and to reestablish a lost note. Nationstar alleged that it had standing as “an
entity not in possession of the Note which is entitled to enforce the Note pursuant to F.S.
673.3091.” Nationstar attached to the complaint copies of the note, mortgage, and a lost
note affidavit from a Nationstar employee (“Nationstar LNA”)....
...3d 473, 475 (Fla. 5th DCA 2017); Schmidt v. Deutsche Bank,
170 So. 3d 938, 940-41 (Fla. 5th DCA 2015). A person entitled to enforce the note and
foreclose on a mortgage includes a person not in possession of the note who is entitled
to enforce under section
673.3091, Florida Statutes....
...enforce the instrument was entitled to enforce it when the loss occurred or acquired
ownership of it from someone entitled to enforce it when the loss occurred, the loss was
not the result of a transfer or seizure, and the instrument cannot reasonably be obtained.
§ 673.3091(1), Fla. Stat. (2016). The person seeking to enforce the instrument must
prove the terms of the instrument and the right to enforce it, and then it is as if the person
has produced the instrument. Id. § 673.3091(2)....
...2011);
see Figueroa v. Fed. Nat’l Mortg. Ass’n,
180 So. 3d 1110, 1115 (Fla. 5th DCA 2015).
Here, the trial court erred in finding that Nationstar had standing to foreclose as a person
not in possession of the note who is entitled to enforce under section
673.3091.
4
Nationstar attempted to prove through the Nationstar LNA and its witnesses’ testimony
and evidence that FHLMC was the owner of the loan and had the right to enforce the
instru...
CopyPublished | Florida 2nd District Court of Appeal
...boarded the loan during this
litigation and was the current servicer for the loan.
The error we find on appeal concerns U.S. Bank's standing at the
time of trial. To prove its standing at trial, U.S. Bank had to reestablish
the lost note. Under section 673.3091(1), Florida Statutes (2017), it was
required to prove three facts:
(a) The person seeking to enforce the instrument was
entitled to enforce the instrument when loss of possession
occurred, or has directly or indi...
...3d at 1122 (holding that
an "unbroken" chain of assignments proved who was authorized to
enforce a note at any given time to satisfy this element of reestablishing a
lost note); see also Bank of N.Y. Mellon v. Kardok,
367 So. 3d 512, 516
3
(Fla. 4th DCA 2023) (applying section
673.3091(1)(a) to find
reestablishment of a lost note under similar facts).
Second, U.S....
...Bank's control.
Finally, the representative detailed Fay Servicing's diligent search
for the lost note—which included contacting prior bailees of the note—
and its conclusion that the note's whereabouts could not be determined.
This testimony satisfied the third element of section 673.3091(1).
With all three statutory elements satisfied, the trial court should
have concluded that U.S....
...This error occurred
because the court placed a loftier burden on U.S. Bank than the statute
requires. In its written judgment, the court explained that it ruled
against U.S. Bank because the servicer's representative did not explain
"how the note was lost, nor the circumstances surrounding its loss." But
section 673.3091 requires no such proof....
CopyPublished | Florida 4th District Court of Appeal | 2016 WL 2342891, 2016 Fla. App. LEXIS 6848
...surrender of the original note. For example, where a plaintiff satisfies the
requirements for the enforcement of a lost, destroyed, or stolen
instrument, the plaintiff may foreclose on a property even where the
plaintiff no longer has possession of the original note. See § 673.3091,
Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 2304263, 2017 Fla. App. LEXIS 7646
...3d
845, 847 (Fla. 2d DCA 2016). Here, the Bank was not in possession of the note. The
note was lost at least as early as October 31, 2006. When the note was lost, it had not
been indorsed by the original lender either in blank or to another party.
Section 673.3091, Florida Statutes (2012), sets forth the requirements for
a person not in possession of an instrument to enforce it:
(1) A person not in possession of an instrument is
entitled to enforce the ins...
...to enforce the note when the loss of
possession occurred. Thus, it had to prove that it "ha[d] directly or indirectly acquired
ownership of the instrument from a person who was entitled to enforce the instrument
when loss of possession occurred." § 673.3091(1)(a)....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 2256865, 2013 Fla. App. LEXIS 8294
...tion. Appellee was the plaintiff in the trial proceedings. In Richards v. HSBC Bank USA,
91 So.3d 233 (Fla. 5th DCA 2012), this court held: A plaintiff must tender the original promissory note to the trial court or seek to reestablish the note under section
673.3091, Florida Statutes (2010)....
CopyPublished | Florida 5th District Court of Appeal
...To prove standing
in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note,
a non-holder in possession of the note who has the rights of a holder, or a person not in
possession of the note who is entitled to enforce under section
673.3091 or section
673.4181(4), Florida Statutes....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 23 Fla. L. Weekly Fed. B 380, 2012 WL 1893634, 2012 Bankr. LEXIS 2350
...negotiable instrument 19 as: (1) The 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 §
673.3091 or §
673.4181(4)....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 3060, 2005 WL 545133
...Although we affirm the final judgment in all other regards, we reverse the trial court’s failure to award judgment in favor of defendant on the promissory notes. The trial judge seems to have required more than the statute does when the origi *1143 nal of a promissory note is not available. Section 673.3091(l)(c) specifies the requirements for a holder to enforce an instrument when the original is not available: “A person not in possession of an instrument is entitled to enforce the instrument if: (a) The person seeking to enforce the...
...in 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.” [e.s.] § 673.3091(1)(c), Fla....
...herwise requires. . See §
673.2031(1), Fla. Stat (2004) ("An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.”). . See §
673.3091(2), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 1234322, 2013 Fla. App. LEXIS 5140
...[“the Bank”] to foreclose a residential mortgage and recover on a promissory note executed in favor of Novelle Financial Services, Inc. in connection with the mortgage. The complaint contained both a count for foreclosure and a second count to re-establish a lost instrument (the note) pursuant to section 673.3091, Florida Statutes....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 6440, 2016 WL 1573873
... The proper party entitled to enforce a note and foreclose a mortgage is the
holder of the note, a nonholder in possession who has the rights of a holder, or a person
not in possession of a lost instrument who has the right to re-establish the note pursuant
to section 673.3091, Florida Statutes (2009)....
CopyPublished | Florida 4th District Court of Appeal
...rument is: “1) [t]he holder[1] 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[ection]
673.3091 or
s[ection]
673.4181(4).” §
673.3011, Fla....
...It
argues the 2008 PAA and a 2014 assignment of mortgage proved
ownership. We disagree.
To prove its standing to foreclose, JPMorgan would have to prove it was
“[a] person not in possession of the instrument who is entitled to enforce
the instrument pursuant to s[ection]
673.3091 or s[ection]
673.4181(4).”
§
673.3011(3), Fla....
...t where the instrument is lost
or destroyed.” Snyder v. JP Morgan Chase Bank, Nat’l Ass’n,
169 So. 3d
1270, 1273 (Fla. 4th DCA 2015). Therefore, JPMorgan would have to
prove: (1) it was the owner, and (2) reestablishment of the lost note under
section
673.3091....
CopyPublished | Florida 4th District Court of Appeal
...Chase Bank USA, N.A.
(“Chase Bank”), the original lender. The complaint also sought to re-
establish the lost note secured by the mortgage. JP Morgan asserted that
although the note was lost, it was entitled to enforce the instrument
pursuant to section 673.3091, Florida Statutes (2017)....
...anding when the final judgment
was entered. Lamb v. Nationstar Mortg., LLC,
174 So. 3d 1039, 1040 (Fla.
4th DCA 2015). Throughout the proceedings below, the note was lost.
Thus, PennyMac had to prove standing and the right to enforce the note,
using section
673.3091, Fla. Stat. (2017). Section
673.3091(1)(a), requires
in part that “[t]he 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...
CopyPublished | Florida 2nd District Court of Appeal
...3d 1212,
1213 (Fla. 4th DCA 2014).
Continuing in the same vein, Heyward argues Wells Fargo did not prove
standing at the time of trial. His argument, however, is that Wells Fargo was required to
prove its entitlement to enforce the note under section 673.3091, Florida Statutes
(2014), which provides for the enforcement of lost, destroyed, or stolen instruments.
The inapplicability of this statute is obvious....
CopyPublished | Florida 4th District Court of Appeal
...The appellees would never have to
5
repay their debt, and thus would obtain a substantial windfall, if Fannie
Mae could not enforce the note and collect the debt due to the erroneous
legal ruling in the 2012 judgment.
Fannie Mae proved its entitlement to enforce the lost note. Section
673.3091(1), Florida Statutes (2017), sets forth three requirements to
enforce a lost note: 1) the person seeking to reestablish the note was
entitled to enforce it when it was lost; 2) the loss was not the result of a
lawful transfer or seiz...
...would not negate its right to enforce.” See Luiz v. Lynx Asset Servs., LLC,
198 So. 3d 1102, 1105 (Fla. 4th DCA 2016). Fannie Mae also provided
testimony that it would indemnify the appellees for any loss that may occur
should any other person attempt to enforce the note. See §
673.3091(2),
Fla....
CopyPublished | Florida 4th District Court of Appeal
...person to enforce the lost note,
we reverse and remand with directions for the trial court to amend the
judgment so as to provide adequate protection to the borrowers. See Blitch
v. Freedom Mortg. Corp.,
185 So. 3d 645, 646–47 (Fla. 2d DCA 2016); §
673.3091(2), Fla....
CopyPublished | Florida 4th District Court of Appeal
...For example, where a plaintiff satisfies
the requirements for the enforcement of a lost, destroyed, or
stolen instrument, the plaintiff may foreclose on a property
even where the plaintiff no longer has possession of the
original note.
The requirements to enforce a lost note are set forth in Section
673.3091, Florida Statutes (2017), which provides:
(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...
...diligent search and inquiry.” Villarreal’s affidavit confirmed that although
the original note had either been “lost, misplaced or otherwise destroyed,”
LMI was entitled to enforce the instrument after it acquired possession
from Ocean Bank. See § 673.3091(1)(a)....
...but “to the best of [his]
knowledge” this loss of possession was not the result of a transfer or
seizure since it had not been “endorsed, pledged, transferred, sold,
encumbered, conveyed or hypothecated” to anyone else. See §
673.3091(1)(b) & (c).
Based on the pleadings, depositions, answers to interrogatories, and
admissions on file together with the unrebutted lost note affidavit of
Villarreal of Ocean Bank, Lauderhill Lending met the requirements for the
enforc...
CopyPublished | Florida 4th District Court of Appeal
...erbally ruled that the mortgage
modification agreement created “too big a gap here for me to say that I can
find by a preponderance of the evidence before me that the note was a
result of the transfer in accordance with the language of the statute
673.3091.” The trial court subsequently entered a final judgment in the
homeowner’s favor, stating that the bank “failed to prove standing by
failing to prove compliance with Florida Statute § 673.3091[(1)](a).” The
bank gave notice of this appeal.
3
Appellate Analysis
The bank argues it proved its standing because it reestablished the lost
note and, regardless of the lost note, the assignment from MERS
established standing....
...(quoting Home Outlet, LLC v. U.S. Bank Nat’l
Ass’n,
194 So. 3d 1075, 1077 (Fla. 5th DCA 2016)).
“A plaintiff seeking to foreclose a mortgage must tender the original
promissory note to the trial court or seek to reestablish the lost note
pursuant to section
673.3091, Florida Statutes.” Am. Residential Equities
LLC v. Saint Catherine Holdings Corp.,
306 So. 3d 1057, 1059 (Fla. 3d DCA
2020) (quoting Boumarate v. HSBC Bank USA, N.A.,
172 So. 3d 535, 536
(Fla. 5th DCA 2015)); see also Sabido,
241 So. 3d at 866 (noting same).
Section
673.3091, Florida Statutes (2019), governing reestablishment
of lost notes, provides:
A person not in possession of an instrument is entitled to
enforce the instrument if:
(a) The person seeking to enforce the instrument w...
...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.
4
§ 673.3091(1), Fla....
...opinion,
if the assignment in this case was valid, then the bank qualified as an
entity that “directly or indirectly acquired ownership of the instrument
from a person who was entitled to enforce the instrument when loss of
possession occurred.” § 673.3091(1)(a), Fla....
...transferred to another person or entity by the original lender. Further,
this evidence, plus the assignment of the note and mortgage from the
original lender to the bank, amounted to a prima facie case that the bank
had standing to bring the foreclosure suit. See § 673.3091(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...ring . . .
.”); Blitch v. Freedom Mortg. Corp.,
185 So. 3d 645, 646 (Fla. 2d DCA 2016)
(“A person seeking enforcement of an instrument . . . must prove the terms
of the instrument and the person's right to enforce the instrument.” (quoting
§
673.3091(2), Fla....
CopyPublished | Florida 4th District Court of Appeal
...The borrowers now appeal.
We have de novo review of the standing issue. Boyd v. Wells Fargo
Bank, N.A.,
143 So. 3d 1128, 1129 (Fla. 4th DCA 2014).
The borrowers argue the bank did not have standing to foreclose the
mortgage because it did not reestablish the lost note, pursuant to section
673.3091, Florida Statutes; and it cannot rely on its corrective assignment
of mortgage to establish standing....
...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....
...3
mortgage prior to the filing of the complaint.” McLean v. JP Mortgan Chase
Bank Nat’l Ass’n,
79 So. 3d 170, 173 (Fla. 4th DCA 2012).
The borrowers argue the bank failed to reestablish possession of the
lost note under section
673.3091, Florida Statutes, because it did not
prove that it directly or indirectly acquired the note from an entity with the
right to enforce the note when it was lost....
...lost note is reviewed for sufficiency of the evidence.” Home Outlet, LLC v.
U.S. Bank Nat’l Ass’n,
194 So. 3d 1075, 1077 (Fla. 5th DCA 2016). “An
appellate court may reverse on finding a failure of proof.” Id.
Where a promissory note is lost, destroyed, or stolen, section
673.3091,
provides:
(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...
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 9258, 2016 WL 3268351
...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[ection]
673.3091 or
s[ection]
673.4181(4).” §
673.3011, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 9272, 2016 WL 3342651
...rument is: “1) [t]he holder[1] 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[ection]
673.3091 or
s[ection]
673.4181(4).” §
673.3011, Fla....
...It
argues the 2008 PAA and a 2014 assignment of mortgage proved
ownership. We disagree.
To prove its standing to foreclose, JPMorgan would have to prove it was
“[a] person not in possession of the instrument who is entitled to enforce
the instrument pursuant to s[ection]
673.3091 or s[ection]
673.4181(4).”
§
673.3011(3), Fla....
...t where the instrument is lost
or destroyed.” Snyder v. JP Morgan Chase Bank, Nat’l Ass’n,
169 So. 3d
1270, 1273 (Fla. 4th DCA 2015). Therefore, JPMorgan would have to
prove: (1) it was the owner, and (2) reestablishment of the lost note under
section
673.3091....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11413, 2015 WL 4549529
...3
(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. 673.3091 or
s....
...atute
specifically notes that a person may be entitled to enforce the note, even if
not the owner. Conversely, nothing in the statute allows an “owner” to
enforce the note without possession, except where the instrument is lost
or destroyed. See § 673.3091, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 11190, 2015 WL 4486524
...note and allonges. We affirm, but write to address two issues. Wells Fargo filed a two-count mortgage foreclosure complaint against Mr. Wilson, seeking to foreclose a mortgage and to reestablish and enforce the lost note and attached allonges under section 673.3091, Florida Statutes (2012). This required Wells Fargo to show that it was entitled to enforce the note, or directly or indirectly acquired ownership from a person entitled to enforce the note, when the loss of possession occurred. See § 673.3091(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Barton, II, Senior Judge.
Law Offices of Daryl L. Jones, P.A., and Faequa A. Khan, for
appellants.
DeLuca Law Group, PLLC and Kimberly George (Fort Lauderdale), for
appellee.
Before EMAS, MILLER and LOBREE, JJ.
PER CURIAM.
Affirmed. See §
673.3091, Fla. Stat. (2019); Wells Fargo Bank, N.A.
v. Bricourt,
290 So. 3d 501, 504 (Fla. 4th DCA 2020) (finding bank met
requirements of section
673.3091 to reestablish lost note “through the
witness’ testimony and unrebutted documentary evidence”); Nationstar
Mortg., LLC v....
CopyPublished | Florida 4th District Court of Appeal
...Ocwen Loan Servicing, LLC,
238 So. 3d
275, 278–79 (Fla. 4th DCA 2018). One way a foreclosure plaintiff may
establish standing is by proving that the borrower’s note is lost and that
the plaintiff is entitled to enforce the lost note pursuant to section
673.3091, Florida Statutes. §
673.3011(3), Fla. Stat. (2013). Section
673.3091, Florida Statutes, sets forth the requirements for enforcement of
a lost note and provides:
(1) A person not in possession of an instrument is entitled to
enforce the instrument if:
(a) The person seeking to enfor...
...f 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(1), Fla. Stat. (2013). At issue in this case is the requirement
of subsection 673.3091(1)(a).
Here, in addition to introducing the witness’s testimony that no other
entity but the Bank was entitled to enforce the lost note, the Bank also
introduced into evidence, without objection, the two assignments of
mortgage....
CopyPublished | Florida 3rd District Court of Appeal
...entitled to enforce” an instrument means: “(1) The 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. 673.3091 or s....
...its standing both at the time the complaint was filed and when judgment is
entered.’ One way a foreclosure plaintiff may establish standing is by proving
that the borrower's note is lost and that the plaintiff is entitled to enforce the
lost note pursuant to section
673.3091, Florida Statutes.”) (quoting Spicer v.
Ocwen Loan Servicing, LLC,
238 So. 3d 275, 278-79 (Fla. 4th DCA 2018))
(additional citation omitted); §
673.3091(1), Fla....
CopyPublished | Florida 3rd District Court of Appeal
protection may be provided by any reasonable means. §
673.3091, Fla. Stat. The lender here relied not only on
CopyPublished | Florida 2nd District Court of Appeal | 2012 Fla. App. LEXIS 1091
...Bank filed an unverified complaint seeking to reestablish a lost promissory note and to foreclose the mortgage on Feltus’s home. U.S. Bank attached to the complaint a copy of the note and the mortgage, but both documents showed the lender to be Countrywide Bank, N.A. In the count to reestablish the note pursuant to section 673.3091, Florida Statutes (2009), U.S....
...2 In addition, the complaint failed to allege that U.S. Bank “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.” § 673.3091(a)....
CopyPublished | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 1, 2016 Fla. LEXIS 68, 2016 WL 164134
...before entry of judgment.” Subdivision (d) of the rule addresses lost, destroyed, or
stolen instruments. In such cases the claimant is required to provide “adequate
protection” against “loss that might occur by reason of a claim by another person
to enforce the instrument.” § 673.3091(2), Fla....
...Section
702.11,
Florida Statutes, also addresses adequate protection for lost, destroyed, or stolen
notes in mortgage foreclosure and lists the acceptable reasonable means of
providing adequate protection, “if so found by the court.” §
702.11(1), Fla. Stat.
(2015). Accordingly, because both sections
673.3091(2) and
702.11(1) are
important provisions regarding adequate protections, we adopt the amendment to
subdivision (d) as proposed by the Committee.
Form 1.944(a) (Mortgage Foreclosure)....
...This mortgage foreclosure
complaint form is for use in mortgage foreclosure cases where the location of the
original note is unknown. It incorporates the pleading requirements for such cases
set forth in section
702.015(5), Florida Statutes (2015). It also incorporates the
requirements of section
673.3091 (Enforcement of lost, destroyed, or stolen
instrument)....
...The affidavit must: (1) detail a
clear chain of all endorsements, transfers, or assignments of the promissory note
that is the subject of the action; (2) set forth facts showing that the claimant is
entitled to enforce a lost, destroyed, or stolen instrument pursuant to section
673.3091, Florida Statutes; and (3) include as exhibits to the affidavit such copies
of the note and the allonges to the note, audit reports showing receipt of the
original note, or other evidence of the acquisition, ownership, and possession of the
note as may be available to the claimant. Adequate protection as required and
identified under sections
673.3091(2) and
702.11(1), Florida Statutes, shall be
provided before the entry of final judgment.
(e) [No change]
-8-
FORM 1.944(a)....
...This form is designed to incorporate the pleading
requirements of section
702.015, Florida Statutes (2013) and rule 1.115. It is also designed to
conform to section
673.3011, Florida Statutes (2013), except that part of section
673.3011,
Florida Statutes, which defines a person entitled to enforce an instrument under section
673.3091, Florida Statutes....
...rsuant to
.....(identify statutory and/or contractual bases, as applicable)......
WHEREFORE, Plaintiff demands judgment re-establishing the promissory note,
determining the amount and nature of adequate protection to be required by sections
673.3091(2)
and
702.11, Florida Statutes, foreclosing the mortgage, for costs (and, where applicable, for
attorneys’ fees), and if the proceeds of the sale are insufficient to pay plaintiff’s claim, a
deficiency judgment.
NOTE: An action for for...
...nonmonetary defaults, and for a receiver. Allegations must be added when appropriate. This
form may require modification. This form is designed to incorporate the pleading requirements
of section
702.015, Florida Statutes (2013), and rule 1.115. It is also designed to comply with
section
673.3091, Florida Statutes (2013). Adequate protection as required by sections
702.11
(2013) and
673.3091(2), Florida Statutes (2013), must be provided before the entry of final
judgment.
- 16 -
FORM 1.944(c)....
CopyPublished | Florida 4th District Court of Appeal
...A party seeking to enforce a lost note must
establish, inter alia, that it 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.” § 673.3091(1)(a), Fla. Stat.
(2017).
The bank failed to satisfy the requirements of section 673.3091(1)(a).
The affidavit from the bank’s servicer stated that “[t]he Note was lost by
the prior holder of the note, and prior to the transfer to Nationstar,” the
current servicer....
CopyPublished | Florida 5th District Court of Appeal
...5th DCA 2015).
To establish standing to foreclose under section
673.3011, Florida Statutes (2012),
a party must be: the holder of the note; a non-holder in possession of the note who has
the rights of a holder; or a person not in possession of the note who is entitled to enforce
under section
673.3091, Florida Statutes (2012)....
CopyPublished | Florida 3rd District Court of Appeal
...ir North Miami home. Hines and
Long contend that we should reverse the judgment because: (1) New Urban did
not have standing to foreclosure on their home; and (2) there was insufficient
evidence to reestablish the lost note under Florida Statutes section 673.3091....
...[it] 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. . . .’” Id.
(quoting § 673.3091, Fla. Stat.). Here, the unbroken chain of assignments and Mr.
Corral’s testimony were competent and substantial evidence supporting the trial
court’s findings that the lost note requirements of section 673.3091 had been met.
Affirmed; cross-appeal dismissed as moot.
3
CopyPublished | Florida 5th District Court of Appeal | 91 U.C.C. Rep. Serv. 2d (West) 1126, 2017 WL 651816, 2017 Fla. App. LEXIS 2163
..."[A] person entitled to enforce the note and
3
foreclose on a mortgage is the holder of the note, a non-holder in possession of the note
who has the rights of a holder, or a person not in possession of the note who is entitled
to enforce under section 673.3091, Florida Statutes." Gorel v....
...exception to actual possession. See Snyder v. JP Morgan Chase Bank, Nat'l Ass'n,
169
So. 3d 1270, 1273 (Fla. 4th DCA 2015) ("[N]othing in the statute allows an 'owner' to
enforce the note without possession, except where the instrument is lost or destroyed."
(citing §
673.3091, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 2265, 2016 WL 625406
...or summary
judgment and rendered final summary judgment in favor of appellee. This
timely appeal followed.
We have held that “[a] plaintiff must tender the original promissory note
to the trial court or seek to reestablish the lost note under section
673.3091, Florida Statutes.” Servedio v....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 608527, 2017 Fla. App. LEXIS 1995
...We uphold the judgment in all respects except for one point. As the
Bank commendably concedes, the trial court failed to determine whether
Appellants were “adequately protected against loss that might occur by reason of a
claim by another person to enforce the instrument,” as required by section
673.3091(2), Florida Statutes (2015)....
CopyPublished | Florida 4th District Court of Appeal
...Wells Fargo Bank, N.A. (“the Bank”) appeals a judgment in favor of
Appellees, Margareth F. Bricourt and Stephanie J. Bricourt (“Borrowers”).
The Bank argues the court erred in applying the wrong legal standard for
reestablishing a lost note under § 673.3091(1)(c), Florida Statutes (2019),
and that it met its burden of proof to reestablish its lost note....
...occurred” and that loss of possession was not the result of transfer by the
Bank or lawful seizure. However, the court found that the witness did not
explain “how she searched for the note” and “the substantive nature of the
search” to satisfy section 673.3091(1)(c), Florida Statutes (2019)....
...Ocwen Loan Servicing, LLC,
238 So. 3d
275, 278–79 (Fla. 4th DCA 2018). “One way a foreclosure plaintiff may
establish standing is by proving that the borrower’s note is lost and that
the plaintiff is entitled to enforce the lost note pursuant to section
673.3091, Florida Statutes.” Deutsche Bank Nat’l Tr. Co. v. Smith,
276 So.
3d 315, 317–18 (Fla. 4th DCA 2019). Section
673.3091, Florida Statutes,
sets forth the requirements for enforcement of a lost note:
(1) A person not in possession of an instrument is entitled to
enforce the instrument if:
(a) The person seeking to enforce the in...
...required to pay the instrument is adequately protected
against loss that might occur by reason of a claim by
another person to enforce the instrument. Adequate
protection may be provided by any reasonable means.
§ 673.3091(1)–(2), Fla....
...“A party seeking to reestablish a lost
note may meet these requirements either through a lost note affidavit or
by testimony from a person with knowledge.” Home Outlet, LLC v. U.S.
Bank Nat’l Ass’n,
194 So. 3d 1075, 1078 (Fla. 5th DCA 2016). At issue in
this case is the requirement of subsection
673.3091(1)(c), Florida Statutes.
Here, through the witness’ testimony and unrebutted documentary
evidence, the Bank established the following: (1) the last time it had
physical possession of the original note, as well as the date it wa...
...party were to attempt to enforce the note.
Further, it is sufficient for the witness to simply testify that he or she
conducted a search for the lost note but could not locate it. See Connelly
v. Matthews,
899 So. 2d 1141, 1143 (Fla. 4th DCA 2005) (finding that
section
673.3091(1)(c), Florida Statutes, was satisfied with testimony that
the document was lent for purposes unrelated to the case)....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 535437, 2017 Fla. App. LEXIS 1659
...673.3011(3) as a person not in possession of the instrument
who is entitled to enforce the instrument. PennyMac Corp. is
entitled to enforce the instrument, but has lost the Mortgage
Note pursuant to Florida Statutes § 673.3091.
In paragraph 25 of Count II, PennyMac alleged, in pertinent part: "Plaintiff was in
possession of the Note and entitled to enforce it when loss of possession occurred or
Plaintiff has been assigned the right to enforce the Note."
Mr....
...e instrument who
has the rights of a holder; or
-4-
(3) A person not in possession of the instrument who
is entitled to enforce the instrument pursuant to s. 673.3091
or s....
...instrument or is in wrongful possession of the instrument.
In this case, PennyMac's claim was that the note had been lost after it had been
indorsed by Cherry Creek to the order of CitiMortgage. Therefore, PennyMac had to
satisfy the requirements outlined in section
673.3091 in order to prevail. See Federal
Nat'l Mortg. Ass'n v. McFadyen,
194 So. 3d 418, 420 (Fla. 3d DCA 2016).
Section
673.3091 provides, in pertinent part, as follows:
(1) A person not in possession of an instrument is
entitled to enforce the instrument if:
(a) The person seeking to enforce the instrum...
...-5-
It was CitiMortgage—not PennyMac—that was entitled to enforce the note when it was
lost. Therefore, PennyMac had to establish that it had directly or indirectly acquired
ownership of the note from CitiMortgage. See § 673.3091(1).
In the Lamb case, the Fourth District outlined what a substituted plaintiff
seeking to enforce an instrument indorsed to the original plaintiff must establish as
follows:
"When specially indorse...
...Deutsche Bank
- 13 -
the theory advanced in the complaint that it qualified under section
673.3011(3) as a
person not in possession of the instrument who is entitled to enforce the instrument
pursuant to section
673.3091....
CopyPublished | Florida 3rd District Court of Appeal
...and to determine the weight of the evidence presented. This court will not
disturb the trial court’s findings, which are presumed correct, unless they are
totally unsupported by competent and substantial evidence.”) (internal
citations omitted); § 673.3091, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 18768, 2015 WL 8932416
...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 ….
§ 673.3091, Fla....
... Apparently, the trial court believed the recent amendment to section 702.15
and the Yang case warranted involuntary dismissal in this case. The trial court was
incorrect in both regards. Proof by affidavit attached to the complaint, as required
under the 2013 amendment to section 673.3091, subsection (5), is inapplicable to
this action which was filed in 2009....
CopyPublished | Florida 3rd District Court of Appeal
...The first affirmative defense, captioned “Standing,” alleged
2
that BNYM was not “1) the holder of the note, 2) a nonholder in possession who
has the rights of a holder, or 3) a person not in possession who is entitled to
enforce the instrument pursuant to Florida Statute §
673.3091 or Florida Statute
§
673.4181(4), at the time the lawsuit was filed, therefore [BNYM] does not have
standing to bring this action.”1
The case proceeded to non-jury trial in August 2016....
...the
overall servicing file.” Counsel for the Borrowers stipulated to the admission of
the note and mortgage into evidence. After Ms. Braithwaite identified the default
1 That this was a “boilerplate” defense is disclosed by the fact that section
673.3091, Florida Statutes (2017), addresses lost, stolen, or destroyed instruments.
Section
673.4181(4) deals with instruments (typically checks) paid by mistake and
treated as dishonored....
CopyPublished | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 752, 2014 Fla. LEXIS 3682, 2014 WL 6977929
...The affidavit must: (1) detail a
clear chain of all endorsements, transfers, or assignments of the promissory note
that is the subject of the action; (2) set forth facts showing that the claimant is
entitled to enforce a lost, destroyed, or stolen instrument pursuant to section
-5-
673.3091, Florida Statutes; and (3) include as exhibits to the affidavit such copies
of the note and the allonges to the note, audit reports showing receipt of the
original note, or other evidence of the acquisition, ownership, and possession of the
note as may be available to the claimant. Adequate protection as required under
section 673.3091(2), Florida Statutes, shall be provided before the entry of final
judgment.
(e) Verification....
...This form is designed to incorporate the pleading
requirements of section
702.015, Florida Statutes (2013) and rule 1.115. It is also
designed to conform to section
673.3011, Florida Statutes (2013), except that part
of section
673.3011, Florida Statutes, which defines a person entitled to enforce an
instrument under section
673.3091, Florida Statutes....
...receiver. Allegations must be
added when appropriate. This form may require modification. This form is
designed to incorporate the pleading requirements of section
702.015, Florida
Statutes (2013), and rule 1.115. It is also designed to comply with section
673.3091, Florida Statutes (2013). Adequate protection as required by sections
702.11 (2013) and
673.3091(2), Florida Statutes (2013), must be provided before
the entry of final judgment.
- 14 -
FORM 1.944(c) MOTION FOR ORDER TO SHOW CAUSE
PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE
FOR ENTRY OF FINAL JUDGMENT OF FORECLOSURE
1....
CopyPublished | Florida 3rd District Court of Appeal
...derdale), for
appellee.
Before EMAS, LINDSEY and BOKOR, JJ.
PER CURIAM.
Affirmed. See Fed. Nat’l Mortg. Ass’n v. Trinidad,
358 So. 3d 754, 759
(Fla. 4th DCA 2023) (explaining that a plaintiff may establish the
requirements under section
673.3091(1), Florida Statutes, for reestablishing
a lost note “by affidavit or by testimony”); see also Deakter v....
CopyPublished | Florida 3rd District Court of Appeal
...5th DCA 2017)(holding: “‘A person entitled to enforce the note and
foreclose on a mortgage is the holder of the note, a non-holder in possession of the
note who has the rights of a holder, or a person not in possession of the note who is
entitled to enforce under section 673.3091, Florida Statutes.’” (quoting Gorel v.
Bank of N.Y....
CopyPublished | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 12137, 2016 WL 4239815
PER CURIAM. Brian and Cynthia Poag appeal a final judgment reestablishing a lost note in favor of Nationstar Mortgage, LLC. The Poags' argue that Nationstar failed to prove reestablishment of the lost note under section 673.3091, Florida Statutes (2014)....
...Because the evidence was insufficient to support reestablishment of the lost note, we reverse the final judgment. The Poags, executed a promissory note on October 14, 2005, in favor of Na-tionstar. On September 18, 2012, Nations-tar filed a complaint to reestablish a lost note under section'673.3091, Florida Statutes, and for foreclosure on the rhortgage securing that lost note....
...1.370(b). Although Nationstar sought relief from the admissions at the end of the bench trial through an ore tenus motion, the trial court denied relief, conclusively establishing the admissions. * “A finding that a lost note is reestablished, under section 673.3091, Florida Statutes, is reversible upon the appellate court’s determination of a failure of proof.” Seidler v....
...Wells Fargo Bank, N.A.,
179 So.3d 416, 417 (Fla. 1st DCA 2015) (citing Correa v. U.S. Bank, N.A.,
118 So.3d 952 (Fla. 2d DCA 2013)). In order to prove a claim to reestablish a lost note, the party seeking reestablishment must meet the requirements under section
673.3091. See Blitch v. Freedom Mortg. Corp.,
185 So.3d 645, 645-46 (Fla. 2d DCA 2016) (quoting §
673.3091, Fla. Stat. (2014)); see Correa,
118 So.3d at 955 (“For the requirements to reestablish a lost note we look to section
673.3091, Florida Statutes (2007).”). Section
673.3091 provides the requirements for entitlement to enforce a lost note as follows: (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...
...ably 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 amendable to sendee of process. § 673.3091(1), Fla. Stat. (2014). Under the first requirement of section 673.3091(1), Nationstar had to prove that it was entitled to enforce the note when loss of possession occurred....
...Section
673.3011, Florida Statutes (2014), defines a person entitled to enforce an instrument as “(1) The holder of the instrument; (2) A non-holder 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.
673.3091 or s....
CopyPublished | Florida 1st District Court of Appeal
...A bank also has the burden
of proving a lost note claim. See Poag v. Nationstar Mortg., LLC,
198 So. 3d 1002, 1004-05 (Fla. 1st DCA 2016) (explaining that a
lost note count requires the plaintiff to prove it was entitled to
enforce the instrument; i.e., had/has standing); see also
§
673.3091(1)(a), (2), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 89 U.C.C. Rep. Serv. 2d (West) 652, 2016 WL 1658773, 2016 Fla. App. LEXIS 6351
...Citing to the Fourth District Court of Appeal’s
decision in Seffar v. Residential Credit Solutions, Inc.,
160 So. 3d 122 (Fla. 4th
DCA 2015), McFadyen moved for rehearing. The motion was granted with the
trial court finding that Fannie Mae “did not satisfy the requirements of Fla. Stat.
673.3091 to enforce the lost, destroyed or stolen Note.” The final judgment was
3
vacated and a final judgment in McFadyen’s favor was entered....
...eans:
(1) The 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. 673.3091 or s....
...possession of the instrument.
§
673.3011, Fla. Stat. (2015).
Fannie Mae’s claim below was that it was entitled to enforce the Probert
promissory note although not in possession of it. It therefore had to satisfy the
requirements detailed in section
673.3091 of the Florida Statutes to prevail....
...ds that the person required to pay the
instrument is adequately protected against loss that might occur by
reason of a claim by another person to enforce the instrument.
Adequate protection may be provided by any reasonable means.
§ 673.3091, Fla....
...at all
times material it was in constructive possession of the bearer note at issue here,
and thus was a the holder with the right to enforce the note at the time the original
was lost, it satisfied all of the requirements of section
673.3011 and section
673.3091 and had standing to enforce the Probert note when the instant foreclosure
action was filed.6
In reaching this determination, we reject the trial court’s reliance on the
Fourth District’s decision in Seffar to reach a different result....
CopyPublished | Florida 5th District Court of Appeal
...At the same time, Michael Stein
executed a promissory note in which he promised to pay back First
Horizon for the loan. The Steins defaulted on the note by missing
a payment in April 2012. Bank initiated foreclosure proceedings
and sought to reestablish a lost note pursuant to section 673.3091,
Florida Statutes (2020)....
...3d at 213.
As such, a “party seeking foreclosure must present evidence that
it owns and holds the note and mortgage in question . . . .” Id.
(quoting Lizio v. McCullom,
36 So. 3d 927, 929 (Fla. 4th DCA
2010)). The party must either introduce the original promissory
note or seek to reestablish the lost note pursuant to section
673.3091, Florida Statutes. Id. Section
673.3091 allows a party to
enforce a lost note if the party “was entitled to enforce it when the
loss occurred or acquired ownership of it from someone entitled to
enforce it when the loss occurred, the loss was not the result of a
transfer or seizure, and the instrument cannot reasonably be
obtained.” Wisman v....
CopyPublished | Florida 1st District Court of Appeal
...promissory note appeal an order entering judgment against them
on a note that is apparently lost. We reverse because the trial court
did not require their creditor, Florida’s News Channel, LC, to
produce the original note, or to reestablish the lost note as required
by section 673.3091, Florida Statutes.
I.
In 2004, MBC Gospel Network, LLC signed a promissory note
with Florida’s News Channel, LC....
...Bank of Am., N.A.,
202
So. 3d 923, 924 (Fla. 1st DCA 2016) (quoting Servedio v. U.S. Bank
Nat’l Ass’n,
46 So. 3d 1105, 1107 (Fla. 4th DCA 2010)) (“A plaintiff
must tender the original promissory note to the trial court or seek
to reestablish the lost note under section
673.3091, Florida
Statutes.”); see also Perry v. Fairbanks Capital Corp.,
888 So. 2d
725, 727 (Fla. 5th DCA 2004) (enforcement of a promissory note
required “either the original [to] be produced, or the lost document
[to] be reestablished under section
673.3091”).
The trial court followed a course contrary to the statutes and
cases....
...Its order acknowledged that
another person possessing the original note could come forward
against Appellants in the future. We reverse this result because
admitting a copy of the lost promissory note over Appellants’
objection was contrary to §
90.953(1) and §
673.3091.
3
In reaching this conclusion, we understand the dissent’s view
that Florida’s News Channel satisfied the lost instrument statute
in the absence of alleging and proving a lost note....
...rial court
then allowed the copy into evidence. But we don’t think an
attorney’s speculation about potential difficulties of obtaining a
non-lost note meets the statute’s requirements for proving and
enforcing a lost negotiable instrument. See § 673.3091(1)(c) & (2),
Fla....
...the judgment in this case. The lost note statute says that a person
“not in possession of an instrument is entitled to enforce the
instrument” if four evidentiary requirements are met and a final
“adequate protection” measure is implemented. § 673.3091(1), Fla.
Stat....
...(2019).
First, the “person seeking to enforce the instrument was
entitled to enforce the instrument when loss of possession
occurred,” which was established here: it is uncontested that FNC
was entitled to enforce the promissory note at all relevant times.
Id. § 673.3091(1)(a). Second, the “loss of possession was not the
result of a transfer by the person or a lawful seizure,” which was
also established; no one claims FNC transferred the note or that it
had been lawfully seized. Id. § 673.3091(1)(b)....
...Third, 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.” Id. § 673.3091(1)(c)....
... FNC could not reasonably obtain the original because its
whereabouts could not be determined. Fourth, a “person seeking
enforcement” of a lost instrument “must prove the terms of the
instrument and the person's right to enforce the instrument.” Id.
§ 673.3091(2)....
