JOHN J. THOMPSON AND EUNETTE THOMPSON, APPELLANTS,
v.
FIRST UNION NATIONAL BANK, ETC., ET AL., APPELLEES
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The court held that genuine issues of material fact exist regarding whether the bank is a holder in due course, requiring reversal of the foreclosure judgment.
Appellants appealed a foreclosure judgment entered against them in favor of the bank. The bank conceded that certain doctrines did not apply, and the …
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DIAMANTIS, Judge.
John and Eunette Thompson appeal the trial court’s order entering a foreclosure judgment against them and in favor of First Union National Bank. Because the instant record contains genuine issues of material fact concerning whether First Union is a holder in due course, the final judgment of foreclosure is reversed and this cause is remanded to the trial court for further proceedings. See Lassiter v. Resolution Trust Corp., 610 So. 2d 531, 538 (Fla. 5th DCA 1992). See also Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981). We note that First Union has conceded that neither the D’Oench doctrine1 nor title 12, section 1823(e), of the United States Code2 applies to the facts of this case because no allegation has been made that a side-agreement easts concerning the Thomp-sons’ promissory note. Aso, we affirm the ruling of the trial court that the promissory note is a negotiable instrument, notwithstanding the fact that the note contains an adjustable interest rate. See Ch. 91-70, §§ 4-6, at 536-37, Laws of Fla.3 See also State ex rel. Szabo Food Services v. Dickinson, 286 So. 2d 529, 531 (Fla.1973).4
Order REVERSED; cause REMANDED for further proceedings.
PETERSON and GRIFFIN, JJ., concur. . See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942).
. See 12 U.S.C.A. § 1823(e) (West 1989).
. The legislature’s 1991 amendments to section 673.106 were never codified because the legislature repealed section 673.106 in 1992 when it revised chapter 673 of the Florida Statutes. The 1992 amendments are now set forth in sections 673.1041 and 673.1121(2), Florida Statutes (1993).
.In this regard, the Thompsons failed to present any evidence to support their impairment of contract claim.
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Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999)…st papers, records or files. Section 71.011 controls the establishment of lost documents “except when otherwise provided.” The lost promissory note was a negotiable instrument. § 673.1041(1), Fla. Stat. (1993). Thompson v. First Union National Bank, 643 So. 2d 1179 (Fla. 5th DCA 1994). Establishing a lost negotiable instrument is governed by a different statute, section 673.3091, Florida Statutes (1993). The latter statute contains more stringent requirements than the former, and the trial court correctly conc…
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Booker T. Perry and Betty J. Perry v. Fairbanks Cap. Corp., 888 So. 2d 725 (Fla. 5th DCA 2004)…document must be reestablished under section 673.3091, Florida Statutes (2002). See Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999); see also Downing v. First Nat’l Bank of Lake City, 81 So. 2d 486 (Fla.1955); Thompson v. First Union Nat’l Bank, 643 So. 2d 1179 (Fla. 5th DCA 1994); Figueredo v. Bank Espirito Santo, 537 So. 2d 1113 (Fla. 3d DCA 1989). A mortgage, on the other hand, does not fit into the definition of the documents required by section 90.952 to be produced in their original form, and may thu…
Authorities Cited
- D'Oench v. Fed. Deposit Ins. Corp., 315 U.S. 447 (U.S. 1942)
- State v. Dickinson, 286 So. 2d 529 (Fla. 1973)
- Rodger Sheets v. Sheets, 405 So. 2d 1039 (Fla. 3d DCA 1981)
- Seinfeld v. Commercial Bank & Tr. Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)
- M.E. Lassiter and Donna Marie Lassiter v. Resolution Tr. Corp., 610 So. 2d 531 (Fla. 5th DCA 1992)