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It is well-settled under Florida law that a foreclosing bank must be in possession of the original note at the time the foreclosure case is filed and at the time of the final hearing, whether that be a summary judgment hearing or a trial. See Winchel v. PennyMac Corp (Fla. 2d DCA 2017).

So what happens if the bank lost the original note and wants to foreclose? What is the bank’s recourse?

Florida law does allow a foreclosing bank which lost the original note to try to foreclose. The bank must attach a sworn affidavit to its foreclosure suit and the affidavit must do the following:

(a) Detail a clear chain of all endorsements, transfers, or assignments of the promissory note that is the subject of the action.

(b) Set forth facts showing that the plaintiff is entitled to enforce a lost, destroyed, or stolen instrument pursuant to s. 673.3091. Adequate protection as required under s. 673.3091(2) shall be provided before the entry of final judgment.

(c) 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 plaintiff.

If the bank does not attach a lost note affidavit or if the affidavit does not follow the requirements, this can form the basis for a Motion to Dismiss the lawsuit (called a Complaint).

A case that shows the nuances in “lost note claims” is Figueroa v. Federal Nat. Mortg. Ass’n (Fla. 5th DCA 2015), which you can read by CLICKING HERE.

 

Best Regards,

Ryan Torrens

Consumer litigation attorney