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Good afternoon. I certainly understand the situation and your concern. Standing is always a major issue and concern when dealing with foreclosures in the State of Florida. If the original note cannot be found, standing to enforce the note can be established if the lender can prove it is entitled to enforce the note under F.S. §673.3091. To prevent improper or multiple attempts to enforce an instrument, §673.3091 imposes a higher evidentiary burden. The lender must show: a) It was entitled to enforce the note when loss of possession
occurred (or it directly or indirectly acquired the note from someone who was) b) the loss of possession was not the result of transfer of possession or lawful seizure; c) it cannot reasonably obtain possession of the instrument because the original was destroyed, its whereabouts cannot be determined, or it is wrongful possession of someone else. The lender must also prove the terms of the instrument, usually through a copy, and its entitlement to enforce it. If these can be shown, Art. 3 requires that the holder in due course provisions apply as if the lender had produced the original. However, the court may not enter judgment unless it finds the person required to pay the instrument is adequately protected from multiple claims to enforce the instrument. The right to enforce a lost instrument may be assigned and a rightful assignee can enforce the lost note when it would prevent a defendant from receiving a windfall by escaping an unpaid obligation and preventing foreclosure. If all of this can be done and shown, the Judge can allow the plaintiff to proceed and would not likely dismiss the case. Of course, if there are issues and questions, that is a matter for trial and any defenses can be raised by defense counsel.
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