JEROME S. DUNN, JR. AND EVELYN M. DUNN, HIS WIFE, APPELLANTS,
v.
IDUS E. WILLIS, APPELLEE
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The owner of a lost or destroyed negotiable instrument can sue directly on the instrument without first re-establishing it in a separate action.
The owner-payee of a lost or destroyed promissory note sued the makers-payors for default. The makers-payors argued that the owner-payee was required …
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COWART, Judge.
The owner-payee of a negotiable promissory note sued the makers-payors, alleging that the makers-payors had defaulted in payment of the note and also alleging that the original note had been lost or destroyed. In addition to other matters of defense, the makers-payors claimed that, procedurally, the plaintiff, as owner-payee of the lost or destroyed note, was required to reestablish the note in a separate action under section 71.011, Florida Statutes, as a condition precedent to action on the note. The owner-payee of the note argued that one direct action could be brought on the lost or destroyed note under section 673.-804, Florida Statutes. The makers-payors argue that because section 71.011 and section 673.804 are in conflict and section 71.-011 was enacted after section 673.804, therefore section 71.011 prevailed over section 673.804.
At trial1 the trial judge ruled in favor of the owner-payee of the promissory note as to this issue, and the makers-payors appeal.
We affirm. See Gutierrez v. Bermudez, 540 So. 2d 888 (Fla. 5th DCA 1989), Barber v. Ehrich, 394 So. 2d 220 (Fla. 5th DCA 1981) (section 673.804, Florida Statutes, requisites) and Locke v. Pyle, 349 So. 2d 813 (Fla. 1st DCA 1977), cert. denied, 357 So. 2d 187 (1978); see also, Edwards v. Rives, 35 Fla. 89, 17 So. 416 (1895).
The owner of a lost, destroyed or stolen negotiable instrument may proceed under section 673.804, Florida Statutes, by direct action against the obligors (makers and endorsers) on the instrument without first re-establishing the lost, destroyed or stolen instrument in a separate action under section 71.011, Florida Statutes.
AFFIRMED.
DAUKSCH and PETERSON, JJ., concur. . The owner-payee of the negotiable promissory note established as a fact that he, the original payee, still owned the note and that he had not negotiated it and the ownership had not otherwise been transferred from him in any manner.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lawyers Title Ins. Co., Inc. v. Novastar Mortg., Inc., 862 So. 2d 793 (Fla. 4th DCA 2003)…may maintain an action to recover upon the note by showing proof of his or her ownership, facts that prevent the owner from producing the instruments, and the terms of the instrument, without first reestablishing the instrument. See Dunn v. Willis, 599 So. 2d 271 (Fla. 5th DCA 1992); Gutierrez v. Bermudez, 540 So. 2d 888 (Fla. 5th DCA 1989); Barber v. Ehrich, 394 So. 2d 220 (Fla. 5th DCA 1981); see also Deakter, 830 So. 2d at 128 (finding that a party seeking to enforce an instrument need not have physical p…
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Liberoff v. Liberoff, 711 So. 2d 1333 (Fla. 3d DCA 1998)…extrinsic fraud can be sought through an independent action. See 453 So. 2d at 378-79. A loose analogy can be drawn to cases in which a litigant simultaneously (a) seeks to reestablish a lost note, and (b) sues on the same note. See Dunn v. Willis, 599 So. 2d 271, 272 (Fla. 5th DCA 1992).…
Authorities Cited
- Edwards v. Rives, 35 Fla. 89 (Fla. 1895)
- Gutierrez v. Yraida Leyva Bermudez, 540 So. 2d 888 (Fla. 5th DCA 1989)
- Locke v. Boncyle Pyle, 349 So. 2d 813 (Fla. 1st DCA 1977)
- Barber v. Brice W. Ehrich, 394 So. 2d 220 (Fla. 5th DCA 1981)