Many people wonder what happens when you are a defendant in a foreclosure proceeding and the lender has lost the promissory note or other instrument signed by you securing the debt obligation. This occurs very often in today’s day and age due to banks selling and re-selling loans over and over. If your lender has lost your promissory note, you may be able to receive foreclosure relief prior to foreclosure or even at an appeal.
In Florida, when lenders lose promissory notes they must prove the requirements of Florida Statute 673.3091 in order to “re-establish” the lost note. Specifically, to re-establish a lost promissory note pursuant to Florida law a lender must prove the following:
- The plaintiff seeking to enforce the promissory note had standing to enforce such instrument when loss of possession occurred (or) the plaintiff acquired the note from a lender who had such standing;
- The loss was not a result of the actual transfer of the promissory note or a lawful seizure of the promissory note; and
- The plaintiff cannot reasonably obtain possession of the promissory note because the instrument was destroyed, its location cannot be determined, or it is in the wrongful possession of an unknown person or a person cannot be found or that person cannot be served.
If the lender cannot prove all of the above, then you may have grounds to invalidate the foreclosure.
Further, a recent Florida foreclosure appeal case reversed a judgment against a defendant because the plaintiff did not establish the requirements of Florida Statute 673.3091 (Jason P. Seidler and Melissa C. Seidler, Appellants, v. Wells Fargo Bank, N.A., Successor by Merger to Wachovia Bank, N.A., Appellee, Case No. 1D14-2569 (Fla. 1st DCA 2015)). In this case, the appellee (Wells Fargo Bank, N.A.) succeeded to a promissory note due to their merge with Wachovia Bank, N.A. In 2008, Wachovia filed a complaint to re-establish a lost promissory note and attached a three page promissory note as an exhibit which was signed on page three by Jason P. Seidler, but undated. No endorsement or other indication of negotiation appeared on this copy of page three. At trial, Wells Fargo Bank submitted a copy of the promissory note that was different than what Wachovia Bank had originally submitted in 2008. Specifically, page three of the promissory note contained an endorsement in blank dated August 18, 2006 (which was dated two years prior to Wachovia Bank’s complaint alleging the lost note). The trial court allowed such evidence to be admitted and this became the grounds for the Seidler’s appeal. After reviewing the evidence, the appellate court concluded that the evidence Wells Fargo Bank submitted during trial was insufficient to prove standing to enforce the note on the date the complaint was filed. Further, the discrepancy between the promissory note submitted with the complaint and the promissory note submitted at trial further failed to prove that Wachovia Bank possessed the promissory note, as indorsed, on December 16, 2008. Therefore, the case was reversed in favor of the Jason P. Seidler and Melissa C. Seidler.
If your lender has lost your mortgage and/or promissory note (or any part of the instrument), you should obtain a complimentary consultation with The Noble Law Firm, P.A. to establish your rights and options to defend your foreclosure.
