Chapter 4-2 Surrender of the Original Note

• Jurisdiction: Florida

4-2 Surrender of the Original Note

Because a promissory note is a negotiable instrument, it is necessary to surrender the original note to the court to remove it from the stream of commerce and prevent the negotiation of the note to another person.⁹ If the plaintiff is not in possession of the original note, it must reestablish the lost note pursuant to Fla. Stat. § 673.3091.¹⁰ The mortgage follows the note as an incident to the debt.¹¹ Therefore, the plaintiff is not required to produce the original mortgage to foreclose.¹²

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Notes:

^[9] Heller v. Bank of Am., N.A., 209 So. 3d 641, 644 (Fla. 2d DCA 2017) (reversing final judgment and remanding for a new trial where the bank admitted a copy of the note instead of the original at trial, and the original note had not been filed with the court); Deutsche Bank Nat'l Trust Co. v. Clarke, 87 So. 3d 58, 61 (Fla. 4th DCA 2012) (holding that a plaintiff in a mortgage foreclosure must produce the original note or make a satisfactory explanation for failure to do so and the surrender of the note to the court file is one such "satisfactory explanation" for failing to produce the original at trial); Perry v. Fairbanks Capital Corp., 888 So. 2d 725 (Fla. 5th DCA 2004) (holding that the original document that is generally required to be filed with the court in a mortgage foreclosure proceeding is the promissory note, not the mortgage).

^[10] Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535, 536 (Fla. 5th DCA 2015) (A plaintiff seeking to foreclose a mortgage must tender the original promissory note to the trial court or seek to re-establish the lost note pursuant to Fla. Stat § 673.3091.).

^[11] WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680 (Fla. 4th DCA 2004) (quoting from Johns v. Gillian, 134 Fla. 575 (Fla. 1938)).

^[12] Perry v. Fairbanks Capital Corp., 888 So. 2d 725 (Fla. 5th DCA 2004).