Florida court holds that ability to enforce a lost note does not create a separate statute of limitations

In another chapter in the seemingly never ending saga of Florida’s statute of limitations litigation, a Florida Appellate Court recently held that a foreclosure complaint was not time barred because the time had run on the bank’s ability to enforce a lost note. Mielke v. Deutsche Bank Nat’l Tr. Co. as Tr. for GSAA Home Equity Tr. 2005-MTR1, No. 1D17-4265 (Fla. Dist. Ct. App. Jan. 10, 2019).

The bank’s complaint plead two counts. One for foreclosure of the mortgage, the other to “Reestablish[ ] of Lost Promissory Note”. The bank attached an affidavit to the complaint attesting that the promissory note had been lost, but asserting that the note had not been transferred to another party or cancelled. The mortgagors answered that the complaint was barred by the statute of limitations because the bank was aware of the lost promissory note as evidenced by its representations to that effect in a prior action. The bank responded that its count to reestablish the lost note was ancillary to its mortgage foreclosure count.

The trial court agreed with the bank finding that the operative Florida statute, section 673.3091, “clearly contemplates that an action to re-establish a lost note is filed in connection with an action to enforce the [n]ote.” Accordingly, an action to re-establish a lost note is connected to an action to foreclose and not a standalone cause of action.

In a case of first impression, the Fourth District Appellate Court affirmed. It determined that the language of the statute was not intended to create a cause of action to reestablish a lost note. Rather, it only recognizes that an entity not possessing an instrument is still entitled to enforce it if the entity meets certain conditions. The cause of action is the enforcement itself; the statute only sets forth special requirements if the plaintiff does not possess the instrument. It further noted that under Florida law, a person entitled to enforce an instrument include a person not in possession of the instrument who is entitled to enforce the instrument. These provisions make clear that the right to enforce a lost note, in the foreclosure context, travels with the breach that triggers the need to seek enforcement—default by a mortgagor. As a result, section 673.3091 does not create a standalone cause of action apart from a breach.

Since the bank did not possess the original note, it had to demonstrate that it complied with section 673.3091 to show that it was the holder of the note entitled to foreclose. Therefore, the right to enforce the lost note did not accrue until the mortgagors defaulted.

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