INTERNATIONAL CENTER OF THE AMERICAS, INC., A FLORIDA CORPORATION, SOL W. MEYERSON AND BERNICE ANN MEYERSON, APPELLANTS,
v.
CHEMICAL BANK, A BANKING CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A party seeking to foreclose on a mortgage must present the promissory note or explain its absence, and affidavits cannot substitute for the missing note.
Appellee sought to foreclose a mortgage securing a large debt evidenced by a promissory note. The note was not produced by the appellee, nor was its a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Holder In Due Course cases and more on FLexlaw
PER CURIAM.
In May, 1976, appellee sought to foreclose a real estate mortgage, which secured a principal indebtedness of three-quarters of a million dollars. A promissory note, a copy of which was attached to the appellee’s complaint, evidenced the corporate appellant’s obligation to repay that sum, plus interest, to one Security National Bank, a stranger to the foreclosure action. Neither was the note produced by appellee, nor was an explanation for that omission offered. Nevertheless, the trial court granted appel-lee’s motion for summary judgment. Appeal was taken from that grant, and we herein reverse.
A promissory note is a negotiable instrument, and as such, entitles a holder in due course to payment thereunder, irrespective of the payor’s claim that he has discharged his obligation by payment to someone else. § 673.305, Fla.Stat. (1980). Therefore, absent presentment of the note, or explanation of his failure to make such, a putative obligee is not entitled to foreclose upon the security for the debt. Downing v. First National Bank of Lake City, 81 So. 2d 486, 488 (Fla.1955). In such a situation, affidavits may not be used to remedy the fault, for want of attachment of sworn or certified copies of the note referred to therein. Ferris v. Nichols, 245 So. 2d 660 (Fla. 4th DCA 1971); Fla.R.Civ.P. 1.510(e).
Since we find that the issue was timely raised below, and that the defense was not waived, as urged by appellee, and since a genuine issue of material fact exists, to wit: The possession of the note or rights thereunder, we reverse the final summary judgment of the trial court, as violative of Fla.R.Civ.P. 1.510(c).
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Tel. Util. Terminal Co., Inc. v. EMC Indus., Inc., 404 So. 2d 183 (Fla. 5th DCA 1981)…e promissory note, any holder in due course is entitled to payment thereunder even though the payor may claim he has discharged his obligation to someone else. § 673.305, Fla.Stat. (Supp. 1980); International Center of the Americas v. Chemical Bank, 384 So. 2d 725 (Fla.3d DCA 1980). Thus, “production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” § 673.307(2), Fla.Stat. (Supp.1980). In Ferris v. Nichols, 245 So. 2d 660, 662 (Fla. 4th DCA 1971), the fourth di…
-
Roberts v. Hart, 573 So. 2d 12 (Fla. 4th DCA 1990)…90.902(2), Fla.Stat. (1989). However, we acknowledge that she may not be able to foreclose her own mortgage without producing the original note in that case. § 90.953(1), Fla.Stat. (1989); International Center of the Americas, Inc. v. Chemical Bank, 384 So. 2d 725, 726 (Fla. 3d DCA 1980); In re Shelter Development Group, Inc. v. MMA of Georgia, Inc., 50 B.R. 588, 590-591 (Bankr.S.D.Fla.1985). Third, the trial court erred as to the order of priority of the various lien or judgment holders. The Roberts’ mortga…
-
Int'l Ctr. OF the Americas, Inc. v. Chem. Bank, 386 So. 2d 589 (Fla. 3d DCA 1980)…PER CURIAM. This is a companion case to International Center of the Americas, Inc. v. Chemical Bank, 384 So. 2d 725 (Fla.3d DCA 1980) wherein we reversed a final judgment foreclosing a mortgage. The present appeal is from a deficiency judgment entered on supplemental complaint after entry of the final judgment of foreclosure. The reversal of the judgment in the p…
Authorities Cited
- Downing v. The First Nat'l Bank OF Lake City, 81 So. 2d 486 (Fla. 1955)
- Ferris v. Nichols, 245 So. 2d 660 (Fla. 4th DCA 1971)