FLORIDA COURT REVERSES BANK’S | Key Points

1. Last month, the Fourth DCA reversed a foreclosure judgment entered in favor of US Bank finding the bank failed to offer sufficient proof of standing and failed to reestablish the lost note. Lewis v. US Bank Nat’l Ass’n, No. 4D19-942, 2020 WL 3261407, at *1 (Fla. 4th DCA June 17, 2020). In Lewis, Bank of America (“BOA”) originated the loan and then assigned it to Nationstar which assigned it to US Bank (or “the Bank”). The borrowers defaulted and US Bank filed its complaint (to foreclose and reestablish lost note), but the copy of the note it attached to its complaint was not endorsed and the Bank’s other evidence was deficient in several respects.

2. At trial, the borrowers “argued the bank failed to prove who lost the note, when it was lost, and who had the right to enforce the note when it was lost” as required by § 673.3091, Fla. Stat. The trial court disagreed with the borrowers and entered judgment for the Bank, but the Fourth DCA reversed that judgment on appeal. The Fourth DCA found the corrective assignment US Bank filed deficient to establish standing because it was dated after the complaint was filed and the corrective affidavits deficient to reestablish the lost note because they were not based on personal knowledge nor did they state BOA was in possession of the note at the time of loss.

3. It is axiomatic that a bank’s standing to foreclose cannot be retroactively established and that lost note cases involve an additional level of proof. For this reason, banks and their counsel need to consider the available evidence prior to filing a lawsuit. If the note cannot be located and the copy does not reflect a proper endorsement, other proof should be gathered or created before the lawsuit is filed.

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