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Sabido v. The Bank of New York Mellon

Florida Court of Appeals, Fourth District

December 20, 2017

FREDERICK SABIDO and JONELLE SABIDO, Appellants,
v.
THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, SUCCESSOR TO JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR CWALT, INC., ALTERNATIVE LOAN TRUST 2007-J1, L'HERMITAGE COMMUNITY ASSOCIATION, INC., and CITIBANK, N.A., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE 14-008945.

          Roy D. Oppenheim, Geoffrey E. Sherman, Jacquelyn Trask, and Yanina Zilberman of Oppenheim Pilelsky, P.A., Weston, for appellants.

          Elliot B. Kula, W. Aaron Daniel, and William D. Mueller of Kula & Associates, P.A., Miami, for appellee, The Bank of New York Mellon.

          PER CURIAM.

         This is a foreclosure case complicated by multiple transfers of the mortgage and note and by the fact that the original note was lost. The complexity of the case caused the trial to extend over four days between February and June, 2016. Because the appellee Bank[1] failed to comply with the requirements of the lost note statute, we reverse the final judgment of foreclosure.

         The plaintiff in a foreclosure case "must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes." Servedio v. U.S. Bank Nat. Ass'n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010). Here, because the Bank did not tender the original promissory note, it could not enforce the note unless it reestablished the note pursuant to the lost note statute.

         Section 673.3091(1), Florida Statutes (2016) provides:

(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.

         Thus, subsection 673.3091(1)(a) required that the Bank prove one of ...


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