COURT REVERSES DISMISSAL | Key Points

1. Last month the Third DCA reversed the lower court’s dismissal of a two-count complaint seeking foreclosure and reestablishment of a lost note against Florida Kalanit, a subsequent title owner, and others. HSBC Bank v. HSBC Bank USA, Nat’l Ass’n v. Florida Kalanit 770 LLC, 45 Fla. L. Weekly D54 (Fla. 3d DCA Jan. 2, 2020). The DCA found the bank’s evidence (an assignment from the loan originator to HSBC and two servicer affidavits) demonstrated HSBC has standing to enforce the lost note under § 673.3091, Fla. Stat.

2. The DCA disagreed with the lower court’s conclusion that the chain of assignment from the originator to HSBC was broken based on language in BOA’s affidavit which the lower court interpreted to mean BOA was a holder rather than just a custodian of the note on behalf of HSBC. The DCA explained a “straightforward reading of the affidavit” clearly identified BOA as the servicing agent and custodian of the note, not the holder.

3. The Court concluded HSBC’s supporting affidavits and the assignment of the note and mortgage “conclusively showed that HSBC was entitled to enforce the lost Note.” The Third DCA remanded a matter to the circuit court with instructions to enter a final judgment in the bank’s favor noting Florida Kalanit had conceded all other elements of HSBC’s claim.

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