final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE
Oppenheim, Geoffrey E. Sherman, Jacquelyn Trask, and Yanina
Zilberman of Oppenheim Pilelsky, P.A., Weston, for
B. Kula, W. Aaron Daniel, and William D. Mueller of Kula
& Associates, P.A., Miami, for appellee, The Bank of New
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 failed to comply with the requirements of
the lost note statute, we reverse the final judgment of
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.
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.
subsection 673.3091(1)(a) required that the Bank prove one of