Florida Foreclosure - How to Defeat a Motion to Reestablish the Note

[Bob Hurt]

Florida Foreclosure - How to Defeat a Motion to Re-Establish the Note

In Florida foreclosure cases, the attorney for the plaintiff (typically a mortgage company, bank, or mortgage servicing company, but seldom if ever the holder in due course of the note) will whine that the promissory note got lost, destroyed, or stolen, and file an affidavit to that effect so as to "re-establish," and therefore enforce, the note under Florida Statute 673.3091 (UCC Article III).

673.3091  Enforcement of lost, destroyed, or stolen instrument.--
(1)  A person not in possession of an instrument is entitled to enforce the instrument if:

(a)  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;
(b)  The loss of possession was not the result of a transfer by the person or a lawful seizure; and
(c)  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.

(2)  A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, s. 673.3081applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

Oh, would I love to use that slick trick on some Federal Reserve Notes. "Judge, here's a copy of that hundred dollar bill, along with my affidavit that I lost it. May I re-establish it please?" Yeah, sure.

But it should not operate as simply as that, for the plaintiff must prove the terms of the instrument and the right to enforce it. The plaintiff will do this by showing the defendant's payment history. This proves that the defendant believed in the validity of the note for which the plaintiff offers a copy into evidence.

Florida Statute 70.011 imposes specific requirements in order to reestablish the note:

71.011  Reestablishment of papers, records, and files.--All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be reestablished in the manner hereinafter provided. (1)  WHO MAY REESTABLISH.--Any person interested in the paper, file or record to be reestablished may reestablish it. (2)  VENUE.--If reestablishment is sought of a record or file, venue is in the county where the record or file existed before its loss or destruction. If it is a private paper, venue is in the county where any person affected thereby lives or if such persons are nonresidents of the state, then in any county in which the person seeking the reestablishment desires. (3)  REMEDY CONCURRENT.--Nothing herein shall prevent the reestablishment of lost papers, records and files at common law or in equity in the usual manner. (4)  EFFECT.-- (a)  Any paper, record or file reestablished has the effect of the original. A private paper has such effect immediately on recording the judgment reestablishing it, but a reestablished record does not have that effect until recorded and a reestablished paper or file of any official, court or public officer does not have that effect until a certified copy is filed with the official or in the court or public office where the original belonged. A certified copy of any reestablished paper, the original of which is required or authorized by law to be recorded, may be recorded. (b)  When any deed forming a link in a chain of title to land in this state has been placed on the proper record without having been acknowledged or proven for record and has thereafter been lost or destroyed, certified copies of the record of the deed as so recorded may be received as evidence to reestablish the deed if the deed has been so recorded for 20 years. (5)  COMPLAINT.--A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment.

Clearly, the court should not reestablish the note merely upon presentment of an affidavit of lost or destroyed note. The Plaintiff must file a complaint, go through a trial, obtain an order of reestablishment from the court, and record the reestablished note with the clerk in order to effect its reestablishment. And look at the final clause in the statute. It requires the plaintiff to name in the complaint all parties interested for or against reestabishment. The plaintiff might have a hard time naming hundreds of unknown purchasers of derivatives based on the securitized note, or of alleging no unknown parties of interest.

At least one Lawmen subscriber, Bruce Thornberry (walkingtruth at gmail dot com), won a foreclosure dismissal with prejudice by reminding the court that the plaintiff had not followed the procedure in Florida Statute 70.011. He sent me the actual court orders. I have reproduced the relevant text below.

Bruce handled the whole case without going to court. In his pleadings, he challenged standing and jurisdiction, which opposing counsel called "frivolous," knowing that most courts let them proceed even without standing and jurisdiction. He even sent the mortgage company a promissory note for millions of dollars as an offer of payment, and a complaint of fraud on the court, which the court ignored. When opposing counsel responded with another motion to reestablish the note, Bruce sent the court two orders, one to dismiss the motion, and the other to dismiss the case. The judge ended up signing both.

Bruce explained that the judge retired shortly after dealing with this, his final case. He wondered whether the judge suffered a final pang of conscious for all the fraud mortgage companies and their attorneys commit against people.

----------------------------------------

James-Bruce: Thornberry, Ambassador and Public Minister c/o 9305 Wellington Park Circle Tampa, Florida; near [33647] 813-973-4269

CASE NO.: 07-CA 015829-I

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT 

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CIVIL ACTION

CASE NO.: 07-CA 015829-I

Judge Frank A. Gomez

DLJ MORTGAGE CAPITAL, INC.,

Plaintiff

vs.

D. SCOTT HEINMAN TRUSTEES OF THORNBERRY FAMILY TRUST, et al,

Defendant/s

ORDER

James-Bruce: Thornberry,

Third Party Plaintiff

vs.

DLJ MORTGAGE CAPITAL, INC.,

NEW CENTURY MORTGAGE CORPORATION,

SELECT PORTFOLIO SERVICING, INC. and 

FLORIDA DEFAULT LAW GROUP, P.L.,

Third Party Defendants

ORDER REGARDING PLAINTIFF'S MOTION TO RE-ESTABLISH NOTE

In the matter of Plaintiffs Motion for Re-Establishment of Note, this court finds as follows:

Having failed to bring forward the "Original Promissory Note," the subject matter of this instant action, and having failed to meet the requirements of Florida Statute 71.011 Reestablishment of papers, records, and files, Plaintiffs Motion for Re-Establishment of Note is denied.

So ordered

Date November 19, 2008

Circuit Judge Frank A. Gomez

13th Judicial Circuit Court of Hillsborough County

State of Florida

-----------------------------------------------------------------

INSTRUMENT*: 2008417072, BK: 18990 PG: 435 PGS: 435 - 437 12/05/2008 at 09:04:48 AM, DEPUTY CLERK:JMERINO Pat Frank,Clerk of the Circuit Court Hillsborough County

James-Bruce: Thornberry,

Ambassador and Public Minister

c/o 9305 Wellington Park Circle

Tampa, Florida; near [33647]

813-973-4269

CASE NO.: 07-CA 015829-I

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT 

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CIVIL ACTION

CASE NO.: 07-CA 015829-I

Judge Frank A. Gomez

DLJ MORTGAGE CAPITAL, INC.,

Plaintiff

vs.

D. SCOTT HEINMAN TRUSTEES OF THORNBERRY FAMILY TRUST, et al,

Defendant/s

ORDER

James Bruce: Thornberry,

Third Party Plaintiff vs.

DLJ MORTGAGE CAPITAL, INC.,

NEW CENTURY MORTGAGE CORPORATION,

SELECT PORTFOLIO SERVICING, INC. and 

FLORIDA DEFAULT LAW GROUP, P.L.,

Third Party Defendants

ORDER FOR DISMISSAL OF CASE NO.: 07-CA 015829-I WITH PREJUDICE

This cause came regularly to the CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA on November 17,2007.

The Court takes judicial notice that Plaintiff has failed to bring forward the "Original Promissory Note," the subject matter of this instant action. Plaintiff has also failed to meet the requirements of Florida Statute 71.011 Reestablishment of papers, records, and files. Squires WILLIAM T. RIEDER, JR. and BRIAN HUMMEL had a duty to determine if Plaintiff met the requirements of Florida Statute 71.011 prior to bringing this action, and wasting the court's valuable time. Further, Plaintiff has failed to rebut third party evidence that Plaintiffs claim has already been settled by agreement of the parties. Therefore, this Court finds itself in want of jurisdiction. There being no just cause for a delay in entering this Order, and good cause appearing therefore:

IT IS ORDERED sua sponte that this case is DISMISSED WITH PREJUDICE

Date November 12 2008

Circuit Judge Frank A. Gomez

13th Judicial Circuit Court of Hillsborough County

State of Florida

Bob Hurt 

2460 Persian Drive #70 - Clearwater, FL 33763

+1 (727) 669-5511

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