PASTORE-BORROTO DEVELOPMENT, INC., APPELLANT,
v.
MAREVISTA APARTMENTS, M.B., INC., 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.
Pastore-Borroto Development appeals a foreclosure judgment entered by default against it in favor of Marevista Apartments. The court vacates the judgment because Marevista failed to produce the original note and mortgage documents, a fatal defect even in default proceedings, and remands for further proceedings.
The amended final judgment of foreclosure is vacated and remanded because Marevista's failure to produce the original note and mortgage or explain their absence requires vacation of the judgment, even though a default was entered. Additionally, the award of attorney's fees for bankruptcy-related costs was erroneous because only the bankruptcy court had jurisdiction to determine entitlement to those fees.
[1] A foreclosure judgment must be vacated when the plaintiff fails to produce the original note and mortgage or provide an explanation for their absence.
[2] The entry of a clerk's order of default does not preclude a defendant from raising the issue of the plaintiff's failure to produce the original note and mortgage.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Marevista's failure to produce the original note and mortgage or provide any explanation as to the absence of those documents requires vacation of the amended judgment.”
Statement of the core holding—that foreclosure cannot proceed without production of or explanation for the original note and mortgage
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMarevista Apartments obtained a final judgment of foreclosure against Pastore-Borroto Development following entry of a clerk's order of default. Marev…
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 Foreclosure Judgment cases and more on FLexlaw
PER CURIAM.
Pastore-Borroto Development, Inc., appeals an amended final judgment of foreclosure in favor of Marevista Apartments M.B., Inc., following entry of an order of default.
We vacate the amended final judgment and remand for further proceedings. Marevista’s failure to produce the original note and mortgage or provide any explanation as to the absence of those documents requires vacation of the amended judgment.1 Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989); Emerald Plaza West v. Salter, 466 So. 2d 1129 (Fla. 3d DCA 1985); see generally, Pennsylvania Blue Shield v. Wolfe, 575 So. 2d 1361, 1363 (Fla. 3d DCA 1991). Cf. Roberts v. Hart, 573 So. 2d 12 (Fla. 4th DCA 1990). The entry of the clerk’s order of default does not preclude consideration of this issue. Downing v. First Nat’l Bank of Lake City, 81 So. 2d 486, 488 (Fla.1955) (failure to produce original note “precluded entry of a valid decree and could be raised by the defendants even though a decree pro confesso had been entered against them.”); Lenfesty v. Coe, 34 Fla. 363, 16 So. 277 (1894); see West v. Fleming, 36 Fla. 298, 18 So. 587 (1895). On remand, the trial court may reconfirm the foreclosure judgment upon presentation of the original note and mortgage or reestablishment of the documents. Figueredo, 537 So. 2d at 1113.
In addition, the award of attorney’s fees was error. The bankruptcy court was the proper forum to determine Marevista’s entitlement to attorney’s fees incurred in the bankruptcy proceeding. The trial court lacked jurisdiction to award such fees. Florida Fed. Sav. & Loan Ass’n v. Sanchez, 553 So. 2d 1254 (Fla. 3d DCA 1989); but see In re Shearer, 124 B.R. 862 (Bkrtcy.N.D. Fla.1990). Upon reconfirmation of the judgment, the trial court may award the attorney's fees incurred in the state court foreclosure proceedings. We, therefore, vacate the final judgment and remand for proceedings consistent with this opinion.
Judgment vacated; remanded.
. Here, the record does not supplant an explanation or the production of the documents. See Georgia Holding & Inv. Co. v. Citizens Bank, 145 Fla. 540, 542, 196 So. 808, 809 (1940) (Buford, J., specially concurring); Braden River Partners v. Professional Sav. Bank, 562 So. 2d 836 (Fla. 2d DCA 1990).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Deutsche Bank Nat'l Tr. Co. for First Franklin Mortg. Loan Tr. 2006-FF7 v. Ezra Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012)…sure must produce the original of the note or “make a satisfactory explanation for failure to do so.” Downing, 81 So. 2d at 488; see also State Street Bank & Trust, 851 So. 2d at 791; Pastore-Borroto Devel., Inc. v. Marevista Apartments, M.B., Inc., 596 So. 2d 526 (Fla. 3d DCA 1992). Especially where there is not a dispute that the copy of a note is an exact duplicate of the original, surrender of the note to the court file is one such “satisfactory explanation” for failing to produce the original at trial. T…1 / 2
-
Fair v. Kaufman, 647 So. 2d 167 (Fla. 2d DCA 1994)…ose original documents precludes the entry of a final judgment. On remand the trial court may again enter a final judgment of foreclosure upon presentation of the original note and mortgage. Pastore-Borroto Development, Inc. v. Marevista Apartments, 596 So. 2d 526 (Fla. 3rd DCA 1992) and Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3rd DCA 1989). The final judgment of foreclosure is reversed and remanded for farther proceedings consistent with this opinion. RYDER, A.C.J., and PARKER, J., concur.…
-
Nat'l Loan Invs., L.P. v. Joymar Assocs., 767 So. 2d 549 (Fla. 3d DCA 2000)…nt it prior to it being enforced. See Downing v. First National Bank of Lake City, 81 So. 2d 486 (Fla.1955); Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989); Pastore-Borroto Development, Inc. v. Marevista Apartments, M.B., Inc., 596 So. 2d 526 (Fla. 3d DCA 1992). A limited exception applies for lost, destroyed, or stolen instruments, where it is shown that “the person was in possession of the instrument and entitled to enforce it when loss of possession occurred.” § 673.3091, Fla. Stat. (…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Downing v. The First Nat'l Bank OF Lake City, 81 So. 2d 486 (Fla. 1955)
- In re Est. of Nicholas P. Alkire v. Smith, 142 Fla. 862 (Fla. 1940)
- Lenfesty v. Burton E. Coe., 34 Fla. 363 (Fla. 1894)
- Fla. Fed. Sav. & Loan Ass'n v. Sanchez, 553 So. 2d 1254 (Fla. 3d DCA 1989)
- Winnie Ann West v. Fleming, 36 Fla. 298 (Fla. 1895)
- Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989)
- Langel v. Alcee L. Hastings, 537 So. 2d 1113 (Fla. 4th DCA 1989)
- Pennsylvania Blue Shield v. Wolfe, 575 So. 2d 1361 (Fla. 3d DCA 1991)
- Emerald Plaza W. v. Salter, 466 So. 2d 1129 (Fla. 3d DCA 1985)
- Roberts v. Hart, 573 So. 2d 12 (Fla. 4th DCA 1990)