The 5th DCA of the State of Florida,  held that a mortgagee was not entitled to final judgment of foreclosure where the mortgagee failed to introduce any evidence of adequate protection for its lost note at trial, as required under Fla. Stat. 673.3091.

The Court followed the 3rd DCA  decision in Guerrero v. Chase Home Fin., LLC, 83 So. 3d 970, 974 (Fla. 3d DCA 2012) and reversed the lower court’s granting of final judgment of foreclosure in favor of the mortgagee and against the borrower, and remanded the matter for establishment of the lost note and mortgage.

A copy of the opinion is available at: http://www.5dca.org/Opinions/Opin2014/101314/5D14-78.op.pdf.

Fla. Stat. 673.3091 governs the enforcement of lost, destroyed or stolen instruments, and provides in pertinent part:

(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. If that proof is made, s. 673.3081 [proof of signatures and status as holder in due course] applies to the case as if the person seeking enforcement had produced the instrument. 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.

Fla. Stat. 702.11(1) explains the concept of adequate protection, and provides in pertinent part:

(1) In connection with a mortgage foreclosure, the following constitute reasonable 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 deposit of cash collateral with the clerk of the court; or

(e) Such other security as the court may deem appropriate under the circumstances.

 

 

Carol A. Lawson, Esq., 28870 U.S. Hwy 19 #300, Hodusa Towers, Clearwater, FL 33761

Phone: (727) 410-2705;   email: [email protected]

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