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My foreclosure case is in Palm Beach FL. The plaintiff filled

a lost note affidavit. A...
My foreclosure case is in Palm Beach FL. The plaintiff filled a lost note affidavit. A corporate deposition was done and the plaintiff’s representative on record admits that he can’t determine who, when and how the note was assigned. It has been 5 years and they still claim that the case is open for searching the note, as of today nothing has been produced. The plaintiff has not entered any evidence as to the record of the chain of Title to prove that they have ever been in procession of the mortgage and note. How can the plaintiff still prove they have standings to foreclose?
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Answered in 14 minutes by:
6/12/2013
LegalKnowledge
LegalKnowledge, Attorney
Category: Legal
Satisfied Customers: 29,502
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Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

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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Customer reply replied 4 years ago



I think that I need to clarify my question. As of today and the trial is tomorrow the plaintiff has not established that they have ever had possession of the Note. Only a copy of the mortgage which is a matter of the clerk of the court record was submitted. No copy of the Note was filed. During the deposition the plaintiff’s representative show us for the first time an allonge but it was not attached to the Note and he had no idea where it came from. The assignment on the allonge was dated one day after the filing of the compliant. The plaintiff was basing information that only dated back from Jan 2008 and the Note is from June 2005. They don’t have information prior to Jan 2008 and if they have they have not produced it as of today. The allonge is not notarized or the assignment was never filed with the clerk of the court. So the question is assuming that they cannot prove under the Statute lost Note is there any other way they can prove that they have standings.

Steve, thank you for the clarification. The copy of the mortgage means nothing, since it is a matter of public record and can just be printed off the internet. What is needed to establish standing is 1) an assignment of mortgage and 2) a note that is indorsed or has an allonge. Moreover, is needs to be blank, unless it is specifically indorsed to the plaintiff, which I doubt is the case here. In order to have standing, the plaintiff needs to have been the owner/holder of the note and mortgage prior to filing the complaint. If the assignment on the allonge was dated AFTER the filing of the complaint, there is certainly doubt as to when they came into possession of it. Without someone testifying to these facts, they may not be able to establish it and the case would be dismissed and need to be refiled. The lender needs to show a proper chain of title and while they may be able to try and proceed under a lost note count, they need more then the mere allegation alone.
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Customer reply replied 4 years ago



My attorney told me that Palm Beach judges are known for not following the law! He says that he has plenty of case law and the deposition to use against them. What annoys me the most is that by case law I should be given a dismal of the case. Now I am not trying to get out of the Note but I know that the Note was sold to Residential Funding Corp as I sign the Note and they are now part of the NY bankruptcy case. The Note was sold and at this point and the investor could have received compensation from TARP but we will never know because they have refused to give us the information in Discovery. We are presenting the defense in preparation to Appeal the case. So as I understand from you as well that if they can’t show possession prior to filing the case than they are dumb out of luck unless the trial judge doesn’t care and rules against me because he feels that I’m getting something for nothing and ignores the potential that they are getting paid twice for the same Note.

Since you have an attorney, I would be inclined to believe that they previously filed a motion to dismiss when the complaint was first filed, based upon the lack of standing and then raised the issue again, as an affirmative defense. Since summary judgment was not granted, it is clear there is a genuine issue of material fact, which is the basis for proceeding with the trial. You are right, that in the event that they can not show that they are the owner/holder of the note and yet the Judge proceed to enter a judgment in favor of them, you will need to appeal. If you file a notice of appeal, they may be hesitant to proceed with the sale, since there could be irreparable harm, if it is sold and the house needs to be obtain back into your possession, if you win your appeal.
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Customer reply replied 4 years ago



He didn’t file to dismiss, he filed affirmative defense, interrogatories and questions that were pretty much all denied by the plaintiff’s response. And yes he got their summary judgment dismissed. So in response to my question if they can’t prove that they were in possession of the Note before filing the complaint tomorrow in court, than there is no other way that they can come up with any other way to show they have standings. Which means it should be dismissed and if they should have won they will have to re-file with the proper documents, which would seem to me to be very difficult at this point since they have not already have done that. Correct?

In order for them to prevail at the trial tomorrow, they will need to show that they are the owners and holder of the note and mortgage. They will have to present evidence showing this. If they did not have standing to begin with, the case should have been dismissed and they would have needed to refile. At this point, the purpose of the trial and the burden, is on them, to show they have a legal right to foreclose, force the sale of the home and either take it back or get paid what they are owed. If the Judge finds in your favor, they would have to bring the lawsuit back and they may continue to have the same problem with standing, unless they can establish a chain of title and passing of ownership.
LegalKnowledge
LegalKnowledge, Attorney
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Customer reply replied 4 years ago

I won but have another question dealing with SOL.

Outstanding. What is your additional question? I will respond once I am able to get back in front of the computer.
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Customer reply replied 4 years ago

I have been denied to respond.

Steve, try it again. If it allowed you to post that, he would allow you to post a follow up question.
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Customer reply replied 4 years ago

Maybe it's to long because it did it again. I'll break it up

Customer reply replied 4 years ago

I will sign up for the free trial and maybe that will work

Just let me know when you have a chance to post your follow up question.
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