FLORIDA COURT AFFIRMS FORECLOSURE JUDGMENT FINDING BANK ESTABLISHED STANDING

Florida’s Third DCA recently affirmed a foreclosure judgment wherein the trial court found Wilmington Trust Company (“Wilmington”) was entitled to reestablish the lost note and foreclose its lien. Fernandez v. Wilmington Tr. Co., 50 Fla. L. Weekly D2571 (Fla. 3d DCA December 3, 2025). Wilmington filed its foreclosure complaint in 2018 attaching a lost note affidavit to its complaint attesting the note was inadvertently lost while it was in Wilmington’s possession. i The borrower, Guillermo Fernandez, answered the complaint and asserted lack of standing as his sole affirmative defense. ii

The matter proceeded to a nonjury trial where the court heard testimony from Wilmington’s servicer and considered the following evidence pertinent to Fernandez’s lack-of-standing defense: (1) a copy of the note which reflected an unbroken chain of endorsements ending with a specific endorsement in favor of Wilmington, (2) the lost note affidavit containing all the statutory requirements iii to reestablish and enforce a lost note, (3) the Pooling and Servicing Agreement, (4) the Mortgage Loan Schedule, and (5) testimony regarding circumstances surrounding the loss of the note and efforts to locate the note. iv

Both the trial and appellate court found this evidence to be competent and substantial evidence of Wilmington’s standing to foreclose. The court rejected Fernandez’s attempts to discredit the bank’s evidence including his challenge to the admissibility of Wilmington’s lost note affidavit. v Relying on witness testimony that the lost note affidavit was a business record of Wilmington’s servicer, the DCA clarified that the affidavit itself was competent evidence and the affiant of the lost note affidavit need not be called as a witness. The DCA affirmed the foreclosure judgment. vi

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1. Florida’s Third DCA recently affirmed a foreclosure judgment wherein the trial court found Wilmington Trust Company was entitled to reestablish the lost note and foreclose its lien. Fernandez v. Wilmington Tr. Co., 50 Fla. L. Weekly D2571 (Fla. 3d DCA December 3, 2025).

2. Both the trial and appellate court found the bank’s evidence of standing, which included a statutorily compliant lost note affidavit, a copy of the properly endorsed note and witness testimony about the circumstances surrounding the loss and search for the lost note, to be competent and substantial.

3. The court rejected the borrower’s challenge to the admissibility of Wilmington’s lost note affidavit explaining that the affiant of a lost note affidavit need not be called as a witness if the bank establishes, as it did here, that the affidavit is a business record.

i Fernandez, at *1.

ii Fernandez, at *2. Future references to this case are to this citation until indicated otherwise.

iii The pertinent statutory provisions affecting the reestablishment and enforcement of lost notes are codified at §§ 673.3091 and 673.3011.

iv Fernandez, at *5-6. v Fernandez, at *6. Future references to this case are to this citation until indicated otherwise.

vi Fernandez, at *7.

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