WELLS FARGO BANK, N.A., ETC., APPELLANT/CROSS-APPELLANT,
v.
ANGELA G. ROBINSON AND RICHARD L. WILSON, ET AL., APPELLEES/CROSS-APPELLEES
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The appellate court affirmed the dismissal of a foreclosure action against a borrower. The lender failed to prove it was entitled to enforce a lost note, leading to the dismissal.
The trial court erred in admitting a copy of the note and allonges, but this error was harmless given the involuntary dismissal. The dismissal, operating as an adjudication on the merits, was affirmed, though it does not preclude a new action based on different defaults.
[1] A party seeking to enforce a lost note must prove entitlement to enforce the note, or direct or indirect acquisition of ownership from a person entitled to enforce the no…
[2] Failure to prove who lost the note, when it was lost, and who had the right to enforce the note at the time of loss precludes recovery under a lost note theory.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This required Wells Fargo to show that it was entitled to enforce the note, or directly or indirectly acquired ownership from a person entitled to enforce the note, when the loss of possession occurred.”
Establishes the legal standard Wells Fargo needed to meet to enforce a lost note.
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Join FLexlaw to unlock all legal intelligenceWells Fargo, as Trustee, filed a foreclosure action against Richard Wilson, seeking to enforce a lost note. To do so, Wells Fargo needed to prove it w…
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Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2001-B, Asset-Backed Certificates, Series 2001-B, appeals the trial court’s order involuntarily dismissing its foreclosure action against Richard Wilson following a non-jury trial. Mr. Wilson cross-appeals, challenging the admission of certain business records, particularly, a copy of the note and allonges. We affirm, but write to address two issues.
Wells Fargo filed a two-count mortgage foreclosure complaint against Mr. Wilson, seeking to foreclose a mortgage and to reestablish and enforce the lost note and attached allonges under section 673.3091, Florida Statutes (2012). This required Wells Fargo to show that it was entitled to enforce the note, or directly or indirectly acquired ownership from a person entitled to enforce the note, when the loss of possession occurred. See § 673.3091(1), Fla. Stat. (2012); Beaumont v. Bank of New York Mellon, 81 So.3d 553, 554-55 (Fla. 5th DCA 2012). Wells Fargo failed to prove who lost the note, when it was lost, and who had the right to enforce the note when it was lost. Wells Fargo also failed to produce any evidence of ownership at the time of the loss. See Beaumont, 81 So.3d at 555. Based on this failure of proof, the trial court erred when it admitted a copy of the note and allonges. However, given the trial court’s involuntary dismissal of Wells Fargo’s action, the error was harmless.
*1280Wells Fargo complains that the trial court erred by dismissing its action with prejudice. Under Florida Rule of Civil Procedure 1.420(b), unless the court in its order of dismissal otherwise specifies, a dismissal, under most circumstances, operates as an adjudication on the merits. However, the dismissal does not preclude a new foreclosure action based on different acts or dates of default. E.g., Singleton v. Greymar Assocs., 882 So.2d 1004, 1005 (Fla.2004); Star Funding Solutions, LLC v. Krondes, 101 So.3d 403, 403 (Fla. 4th DCA 2012); see also PNC Bank, N.A. v. Neal, 147 So.3d 32, 32 (Fla. 1st DCA 2013).
AFFIRMED.
LAWSON, C.J., ORFINGER and EVANDER, JJ., concur.
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Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015)…ited to the application of the res judicata doctrine, but concluding [*960] that Singleton’s analysis is equally applicable to the statute of limitations issue), review granted, 160 So. 3d 892 (Fla.2014); see also Wells Fargo Bank, N.A. v. Robinson, 168 So. 3d 1279, 1280 (Fla. 5th DCA 2015); PNC Bank, N.A. v. Neal, 147 So. 3d 32 (Fla. 1st DCA 2013); Star Funding Sols., LLC v. Krondes, 101 So. 3d 403 (Fla. 4th DCA 2012). REVERSED and REMANDED with directions to dismiss the complaint. TORPY and COHEN, JJ., con…
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Sabido v. The Bank OF NEW York Mellon, 241 So. 3d 865 (Fla. 4th DCA 2017)…ession occurred." § 673.3091(1)(a). As in Beaumont v. Bank of New York Mellon , 81 So. 3d 553, 555 (Fla. 5th DCA 2012), the Bank "offered no proof of anyone's right to enforce the note when it was lost." See also Wells Fargo Bank, N.A. v. Robinson , 168 So. 3d 1279, 1279 (Fla. 5th DCA 2015) (finding reversible error in admitting a copy of the note into evidence where "Wells Fargo failed to prove who lost the note, when it was lost, and who had the right to enforce the note when it was lost. Wells Fargo also fa…
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Lewis v. US Bank Nat'l Assoc., 298 So. 3d 72 (Fla. 4th DCA 2020)…n. Because the bank failed to establish that it acquired ownership of the note from a party entitled to enforce it at the time it was lost, the trial court erred in finding the note was reestablished. See, e.g., Wells Fargo Bank, N.A. v. Robinson, 168 So. 3d 1279 (Fla. 5th DCA 2015). The borrowers next argue the trial court erred in finding that the corrective assignment of mortgage transferred the note to the bank because the word “note” was not included in the original assignment of mortgage, and the corr…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Singleton v. Greymar Assocs., 882 So. 2d 1004 (Fla. 2004)
- Beaumont v. Bank OF NEW York Mellon, 81 So. 3d 553 (Fla. 5th DCA 2012)
- Star Funding Solutions, LLC v. Krondes, 101 So. 3d 403 (Fla. 4th DCA 2012)
- Laterrance Barnes v. State, 101 So. 3d 403 (Fla. 1st DCA 2012)
- PNC Bank, N.A. v. Neal, 147 So. 3d 32 (Fla. 1st DCA 2013)
- Johnson v. State, 147 So. 3d 32 (Fla. 1st DCA 2013)