I have a note and guaranty that has been executed and witnessed / signed by a notary.I only have a copy provided by the guarantor.Does Florida law require that I have the original in order to enforce?
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Good afternoon. No, they do not. I have provided the statute below which controls but there are elements/requirements that a party must first meet, to establish that is existed. A lost note affidavit will likely need to be attached to the copy of the note, along with an explanation as to what happen, if possible.
(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 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;
(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c) 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.
(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.(NNN) NNN-NNNNapplies 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.
The above references "lost" many times.
I have never had the original. The guarantor only proved me with a copy. I have been trying to get the original but have been unsuccessful.
Does this have any bearing?
Was it a result of them not providing it to you, even though it was in their possession?
Correct. They had / have the original but only provided a copy via email and their attorney also provided me with ONLY a copy.
Their attorney make reference to them only providing a copy in order to "meet the deadline"......
He also has been attempting to get the original to no avail
That is something which would be favorable to you and support your position, if it is challenged, as to why you do not have the original in your possession. Once the deadline had passed, they could still turn over the original, when time was not an issue. Moreover, if an attorney is involved, they should be acting in good faith and would likely still have it, so it could be turned over if ordered by the Judge.
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