DENISE O'DONOVAN A/K/A DENNISE O'DONOVAN, APPELLANT,
v.
CITIBANK, FSB F/K/A CITICORP SAVINGS OF FLORIDA, A FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLEE
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The court affirmed summary judgment for foreclosure but reversed summary judgment for reestablishment of a lost promissory note.
Plaintiff sought foreclosure on a mortgage and reestablishment of a lost promissory note. The trial court granted summary judgment on both counts.…
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PER CURIAM.
This is an appeal from a final summary judgment entered in a two-count complaint for the foreclosure on a mortgage and reestablishment of the lost promissory note which was encumbered by the mortgage. We affirm the summary judgment as to the foreclosure action in count one where the record before us is devoid of any genuine issue of material fact for trial, see Carbonell v. BellSouth Telecommunications, Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996); Gray v. Purchase Corporation, 573 So. 2d 205, 206 (Fla. 1st DCA 1991), and we direct the lower court to reset a sale date.
We do reverse, however, the entry of summary judgment as to count two for the reestablishment of the promissory note. Upon the commendable and appropriate confession of error of the appellee, summary judgment was improvidently entered on this count where the appellee was unable to supply a substantial copy of the lost promissory note to prove its essential terms as is generally required by section 71.011(5), Florida Statutes (1997).1 Whether the appellee’s proffered proof of the note’s essential terms was adequate for its reestablishment is a matter for determination by the trier of fact and should not be decided as a matter of law. See Gutierrez v. Bermudez, 540 So. 2d 888, 891 (Fla. 5th DCA 1989). We therefore remand this count for trial.
Affirmed in part and reversed in part.
. This section provides:
(5) COMPLAINT. — A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment.
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Env't Servs., Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009)…nner authorized by section 71.011, Florida Statutes (2008), the failure to do so is not fatal to ESI’s attempt to enforce the agreement against Lejeune, provided that the trial court is satisfied as to its essential terms. O’Donovan v. Citibank FSB, 710 So. 2d 654, 655 (Fla. 3d DCA 1998); Gutierrez v. Bermudez, 540 So. 2d 888, 891 (Fla. 5th DCA 1989). [*1268] On remand, if the essential terms of the written agreement are established to the satisfaction of the trial court, it should be enforced against LeJeune…
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State St. Bank & Tr. Co. for Holders of Bear Stearns Mortg. Sec. Inc. Mortg. Pass-Through Certificates v. Hartley Lord, 851 So. 2d 790 (Fla. 4th DCA 2003)…es possession either by the assignor at the time of loss or by the person seeking to enforce the note. Any remedy must, therefore, be left to the legislature. GUNTHER and STEVENSON, JJ„ concur. . We recognize that in O'Donovan v. Citibank, F.S.B., 710 So. 2d 654 (Fla. 3d DCA 1998), the court affirmed a summary judgment allowing foreclosure but reversed on the re-establishment claim where there was a question of fact as to whether the plaintiff could re-establish the terms of the promissory note under sectio…
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Deakter v. Augusto Menendez, Jr., 830 So. 2d 124 (Fla. 3d DCA 2002)…of fact is entitled to judge the witness’s credibility in its entirety and accept or reject the witness’s testimony on those and other issues as well.”), quoted in Hanono v. Murphy, 723 So. 2d 892, 893-894 (Fla. 3d DCA 1998); O’Donovan v. Citibank, 710 So. 2d 654 (Fla. 3d DCA 1998) (“Whether the ... proffered proof of the note’s essential terms was adequate for its reestablishment is a matter for determination by the trier of fact and should not be decided as a matter of law.”). II. ISSUES OF LAW The trial…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carbonell v. Bellsouth Telecomms., Inc., 675 So. 2d 705 (Fla. 3d DCA 1996)
- Gutierrez v. Yraida Leyva Bermudez, 540 So. 2d 888 (Fla. 5th DCA 1989)
- Gray v. Purchase Corp., 573 So. 2d 205 (Fla. 1st DCA 1991)