ABDALLAH BOUMARATE, ET AL., APPELLANT,
v.
HSBC BANK USA, N.A., ETC., APPELLEE
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The court reversed summary judgment for the bank in a mortgage foreclosure case, holding that the bank failed to establish its right to enforce the promissory note by proving how it obtained the note and the circumstances of its loss, as required by Beaumont v. Bank of New York Mellon.
A bank seeking to foreclose on a mortgage and enforce a promissory note must prove its right to enforce the note as of the summary judgment hearing, including how it obtained the note and the circumstances of any loss, and cannot rely solely on a lost instrument affidavit averring current possession without explanation.
[1] A mortgagee seeking to enforce a promissory note must prove its right to enforce the note as of the summary judgment hearing, including how it obtained the note and the c…
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Join FLexlaw to unlock all legal intelligence“In order to be entitled to judgment, the Bank must prove its right to enforce the note as of the date of the summary judgment hearing, including how it obtained the Novelle Financial Services note and the circumstances of its loss.”
Court stating the bank's burden of proof in mortgage foreclosure cases involving lost instruments.
Appellants executed a promissory note in favor of Novelle Financial Services, Inc. in connection with a residential mortgage. The bank filed suit for …
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Abdallah Boumarate and Jennifer Bratc-hell-Boumarate [“Appellants”] appeal a summary final judgment entered by the trial court in favor of HSBC Bank, N.A. [“the Bank”] to foreclose a residential mortgage and recover on a promissory note executed in favor of Novelle Financial Services, Inc. in connection with the mortgage. The complaint contained both a count for foreclosure and a second count to re-establish a lost instrument (the note) pursuant to section 673.3091, Florida Statutes.
In order to be entitled to judgment, the Bank must prove its right to enforce the note as of the date of the summary judgment hearing, including how it obtained the Novelle Financial Services note and the circumstances of its loss.1 Beaumont v. Bank of New York Mellon, 81 So.3d 553, 554-55 (Fla. 5th DCA 2012). The Bank did file a “lost instrument affidavit,” but it merely averred that it currently held the note, but could not find it. The Bank does not dispute its burden of proof on this point; it merely argues that by *1240failing to raise this issue in its pleading, Appellants lost their right to complain of the defect. However, this burden remained with the bank. Beaumont, 81 So.3d at 555; Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So.3d 773 (Fla. 4th DCA 2011).
REVERSED and REMANDED.
PALMER and JACOBUS, JJ., concur.
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Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039 (Fla. 4th DCA 2015)…xpress Equity Lending Grp., LLLP, 125 So. 3d 965, 967 (Fla. 4th DCA 2013). In addition to proving standing when the complaint is filed, a bank must also establish. its standing at the time final judgment is entered. Boumarate v. HSBC Bank USA, N.A., 109 So. 3d 1239, 1239 (Fla. 5th DCA 2013). This case was commenced by Aurora Loan Services, LLC. The note attached to the complaint included several indorse-ments, the last one being a special indorsement in favor of Aurora. Nationstar filed a Motion for Substitut…
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Pennington v. Ocwen Loan Servicing, LLC, 151 So. 3d 52 (Fla. 1st DCA 2014)…age in question.”). Standing must be established at the time of the filing of the foreclosure action. Focht, 124 So. 3d at 310. Additionally, a bank must also have standing at the time final judgment is entered. See Boumarate v. HSBC Bank USA, N.A., 109 So. 3d 1239, 1239 (Fla. 5th DCA 2013); Beaumont v. Bank of New York Mellon, 81 So. 3d 553, 555 (Fla. 5th DCA 2012). In this case, Ocwen failed to demonstrate it had standing to enforce the note. Its exhibits did not qualify as an indorsement from Countrywide t…
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Abdallah Boumarate and Jennifer Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535 (Fla. 5th DCA 2015)…C Bank following a bench trial. This is the Boumarates’ second appeal in this case. They first appealed the trial court’s entrance of summary judgment in favor of the Bank, and this Court reversed. See Boumarate v. HSBC Bank USA, N.A. (Boumarate I), 109 So. 3d 1239 (Fla. 5th DCA 2013). We again reverse. At trial, the Bank introduced copies of the note and mortgage as well as a copy of the Boumarates’ loan transaction history. The note was made payable to Novelle Financial Services. The Bank’s only witness was…
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
- Beaumont v. Bank OF NEW York Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012)
- Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773 (Fla. 4th DCA 2011)