Chapter 4-8 Standing to Enforce a Lost Note

• Jurisdiction: Florida

4-8 Standing to Enforce a Lost Note

A lost instrument can be enforced if the person seeking to 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.⁷³ There is no requirement that the plaintiff prove exactly how possession was lost.⁷⁴ Proving the circumstances of the note's loss is necessary only if it is required to prove that the plaintiff was entitled to enforce it when the loss occurred.⁷⁵ A note may be assigned or transferred, even though it is lost.⁷⁶ 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.⁷⁷ The person may do so either through a lost note affidavit or by testimony from a person with knowledge.⁷⁸ Standing to enforce a lost note that has been reestablished must be proven in the same manner as an original note that had not been lost.⁷⁹ The fact that an original note is lost at the time the complaint is filed, and later found during the pendency of the case, does not negate the ability of the plaintiff to establish standing to foreclose, where the plaintiff presents evidence sufficient to establish the right to enforce the lost note at the time the suit was filed.⁸⁰

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Notes:

^[73] Fla. Stat. § 673.3091 (2016); Wisman v. Nationstar Mortg., LLC, 239 So. 3d 726 (Fla. 5th DCA 2017).

^[74] Deakter v. Menendez, 830 So. 2d 124, 129 (Fla. 3d DCA 2002).

^[75] Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535, 537 (Fla. 5th DCA 2015) (Reversing final judgment where the bank failed to prove that it was entitled to enforce the note at the time it was lost. The copy of the note was payable to another entity, contained no indorsements and there was no evidence of an assignment.).

^[76] Deakter v. Menendez, 830 So. 2d 124, 129 (Fla. 3d DCA 2002).

^[77] Wisman v. Nationstar Mortg., LLC, 239 So. 3d 726, 728 (Fla. 5th DCA 2017); Mortgage Elect. Registration Sys. v. Badra, 991 So. 2d 1037, 1039 (Fla. 4th DCA 2008).

^[78] Wisman v. Nationstar Mortg., LLC, 239 So. 3d 726, 728 (Fla. 5th DCA 2017).

^[79] Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535, 537-38 (Fla. 5th DCA 2015).

^[80] In Wilmington Sav. Fund Soc'y, FSB v. Louissaint, 212 So. 3d 473 (Fla. 5th DCA 2017), the bank filed its initial complaint with a lost note count and lost...