EDLY F. CALIXTE AND MARIE J. PETIT-FRERE, APPELLANTS,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, APPELLEE
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Florida appellate court reversed a mortgage foreclosure judgment because the trial court failed to determine whether appellants were adequately protected against loss from claims by another person to enforce the instrument, as required by section 673.3091(2), Florida Statutes.
A trial court must determine whether mortgagors are adequately protected against loss from third-party claims to enforce a lost promissory note before entering a foreclosure judgment.
[1] A trial court must make an affirmative determination that mortgagors are adequately protected against loss from third-party claims to enforce a lost promissory note befor…
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Join FLexlaw to unlock all legal intelligence“Because the court's consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue.”
Court cited Blitch v. Freedom Mortg. Corp. to explain why failure to address adequate protection requires reversal.
Edly Calixte and Marie J. Petit-Frere were defendants in a mortgage foreclosure action brought by Federal National Mortgage Association.…
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On Motion for Rehearing
Upon consideration of the appellants’ motion for rehearing, we withdraw this court’s opinion issued November 20, 2016, and substitute the following opinion in its stead.
Edly Calixte and Marie J. Petit-Frere appeal a final judgment of mortgage foreclosure entered against them and in favor of Federal National Mortgage Association. We uphold the judgment in all respects except for one point. As the Bank commendably concedes, the trial court failed to determine whether Appellants were “adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument,” as required by section 673.3091(2), Florida Statutes (2015). Accordingly, we reverse the final judgment of mortgage foreclosure and remand for further proceedings, “at which the court must address the means by which the Bank must satisfy this post-proof condition.” Blitch v. Freedom Mortg. Corp., 185 So.3d 645, 646-47 (Fla. 2d DCA 2016) (“Because the court’s consideration of the issue of adequate protection is a condition of entering a judgment that reestablishes a lost note, its failure to provide adequate protection, or to make a finding that none is needed under the circumstances, requires reversal and remand for the court to consider the issue.”).
Reversed and remanded for further proceedings.