CHARLES MASON, APPELLANT/CROSS-APPELLEE,
v.
GUY B. RUBIN AND STEPHANIE RUBIN, HIS WIFE, APPELLEES/CROSS-APPELLANTS
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The court held that the husband failed to meet the requirements for establishing a lost negotiable instrument and that the borrowers were not in default of an oral agreement.
Lenders sold a home to borrowers and separated, instructing borrowers to split the mortgage payment. Borrowers paid the wife but could not pay the hus…
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KLEIN, J.
This appeal is from a judgment denying foreclosure of a $10,000 second mortgage. The lenders, who had sold the borrowers their home, separated after the closing, and requested that the borrowers divide the $66 monthly payment equally between the lenders. The borrowers made the $33 payments timely to the wife, but testified that they had been waiting for the husband to inform them as to where he was residing, so they could mail him the payments, and he had never done so. After about one year, the husband had his lawyer contact the borrowers, and the lawyer insisted on being paid $500 in attorney’s fees for collecting the payments. The borrowers’ refusal to pay those attorney’s fees apparently resulted in the husband bringing this foreclosure action. The trial court denied the foreclosure.
The husband raises as his first point that the trial court erred in failing to reestablish the promissory note, which was lost. He argues that his proof complied with section 71.011, Florida Statutes (1995), which provides for establishing lost 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 concluded that the husband did not satisfy section 673.3091.
The trial court did allow the husband to proceed with his claim based on breach of an oral agreement. We affirm the trial court’s finding that the borrowers were not in default of that agreement. We find the other issues raised by the husband to be without merit.
Affirmed.
DELL, and GROSS, JJ., concur.
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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)…r alia, that a duplicate is not admissible to the same extent as the original when “[t]he document or writing is a negotiable instrument as defined in s. 673.1041.” § 90.953(1). A [*61] promissory note is a negotiable instrument. See Mason v. Rubin, 727 So. 2d 283, 284 (Fla. 4th DCA 1999). Therefore, a party who seeks to foreclose on a mortgage must produce the original note. Professor Ehrhardt explains the reason for this section 90.953(1) exception: The drafters of the [Evidence] Code excluded duplicates…
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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)…t the requirement of section 678.8091. The undisputed facts show that the note was lost before the assignment to State Street was made. This court has previously refused to allow a mortgage foreclosure under similar circumstances. In Mason v. Rubin, 727 So. 2d 283 (Pla. 4th DCA 1999), the appellant brought a foreclosure action on a second mortgage, the trial court denied the foreclosure, and this court affirmed on the basis that the appellant had failed to establish the lost note under section 673.3091. Likew…1 / 2
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Brian and Cynthia Poag v. Nationstar Mortg., LLC, 198 So. 3d 1002 (Fla. 1st DCA 2016)…the reestablishment of the note is proper. The question of whether section 673.3091 displaces- section 71.011 as to the standards for reestablishing a note is a debatable one. At least one court views it as having this effect. See Mason v. Rubin, 727 So. 2d 283, 284 (Fla. 4th DCA 1999) (stating that “Establishing a lost negotiable instrument is governed by section 673.3091 ... [which] contains more stringent requirements than [section 71.011].”) (emphasis added). The contrary argument is that a note can be…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lundy v. State, 643 So. 2d 1179 (Fla. 2d DCA 1994)
- Thompson v. First Union Nat'l Bank, 643 So. 2d 1179 (Fla. 5th DCA 1994)