Many clients ask whether a Bank is required to produce the Original Note in order for a Court to grant the Bank a foreclosure. The Bank is not required to produce the original note. However, if they do not physically possess the original note, the Bank must assert a count to re-establish the lost promissory note. This procedure is more burdensome for a Bank than a regular foreclosure. This separate cause of action must be specifically plead and must allege the elements found in Florida Statute 673.3091. The Bank must prove the following (1) 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 (2) The loss of possession was not the result of a transfer by the person or a lawful seizure (3) 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 and (4) The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
Banks have a more difficult time proving these elements and therefore Defendants usually can negotiate a better settlement with the bank and receive an extended sale date waiver of a deficiency or a cash for keys settlement. Moreover, many judges throughout the state of Florida have denied Banks foreclosures based on the Banks failing to prove one of the elements of this cause of action such as failing to prove that the Bank was entitled to enforce the instrument at the time it was lost, failing to have any knowledge about how or when the Note was lost or failing to provide adequate protection to the Defendants against a claim by another person attempting to enforce the promissory note.