In Florida, it is well established that the original promissory note must be surrendered to the court as a condition of its enforcement. What do you do when you cannot find the original promissory note? Florida Statutes 673.3091 sets out a procedure to follow in order to “reestablish” a lost note and provides that a person can enforce a lost note if:
The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
The loss of possession was not the result of a transfer by the person or a lawful seizure; and
The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
In order to meet the statutory requirements, the party seeking to enforce a lost promissory note should offer evidence sufficient to meet these statutory requirements. It is insufficient to merely provide the court with a copy of the lost note. In fact, it can be fatal to the case if the bank testifies that it knows absolutely nothing about how the note was lost. Recently, the Second District Court of Appeals found that since the bank “had no knowledge of the circumstances of the loss,” it could not meet the requirements of subsection (1)(b) of the statute. At trial, when the bank’s representative was asked whether it was ever assigned to anyone or sent to anyone as part of an agreement, the bank’s representative answered, “I do not.” In this case, the bank’s testimony was in direct opposition to what it was required to prove under the statute. Without an explanation for how the note was lost, the Court held that the bank failed to establish that it was not the result of a transfer or a lawful seizure. The result? The bank’s complaint for foreclosure was dismissed, and was not entitled to enforce the note or foreclose the property.