THOMAS DEBISH AND MICHELLE DEBISH
v.
WELLS FARGO BANK, N.A.
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When a trial court reestablishes a lost promissory note in a foreclosure action, it must make a finding that the borrowers are adequately protected against loss from third-party claims to enforce the note, or the judgment must be reversed and remanded.
[1] A trial court's failure to find that borrowers are adequately protected against loss from a claim on a lost note requires reversal and remand for consideration of adequat…
[2] Adequate protection for a lost note claim may be satisfied by an indemnification agreement, a surety bond, a letter of credit, cash collateral, or other security deemed a…
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Join FLexlaw to unlock all legal intelligence“Because the court's consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue.”
The court explaining the mandatory nature of the adequate protection requirement when reestablishing a lost note.
Thomas and Michelle Debish were borrowers in a mortgage foreclosure action brought by Wells Fargo Bank as trustee. The trial court entered a final jud…
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PER CURIAM. The borrowers, Thomas and Michelle Debish, appeal an Amended Final Judgment of Foreclosure. We affirm without discussion as to the borrowers’ argument that the plaintiff failed to prove its standing to enforce the lost note. However, because the trial court reestablished the lost note without finding that the borrowers were adequately protected against loss that might occur due to a claim by another person to enforce the lost note, we reverse and remand with directions for the trial court to amend the judgment so as to provide adequate protection to the borrowers. See Blitch v. Freedom Mortg. Corp., 185 So. 3d 645, 646–47 (Fla. 2d DCA 2016); § 673.3091(2), Fla. Stat. (2017).
“Because the court’s consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue.” Blitch, 185 So. 3d at 646. As noted in Blitch,
2
the requirement of adequate protection is generally satisfied “through a written indemnification agreement in the final judgment, the posting of a surety bond, a letter of credit, a deposit of cash collateral with the court, or ‘[s]uch other security as the court may deem appropriate under the circumstances.’” Id. (quoting § 702.11(1)(e), Fla. Stat. (2014)). Affirmed in part, Reversed in part, and Remanded for further proceedings. TAYLOR, MAY and DAMOORGIAN, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.