Correa v. U.S. Bank National Ass'n
118 So. 3d 952
| Fla. Dist. Ct. App. | 2013Background
- Foreclosure action against Correa; Indymac initially filed to reestablish and enforce lost note and mortgage; assignments eventually brought suit to U.S. Bank; trial court permitted lost-note claim with attached note but without entering the lost note into evidence; trial produced judgment based on witness testimony lacking the lost-note terms; court later reversed course, ultimately reversing and remanding for involuntary dismissal.
- Bank’s sole evidence was a witness who could not explain how the note was lost or its terms; the lost-note document was not entered into evidence; no clear proof of terms or right to enforce under the statute.
- Correa argued inadequate notice of trial (Rule 1.440(c)) and insufficient evidence to reestablish the lost note; she also claimed standing and calculation issues; she did not present a valid objection to the lost-note testimony at bench trial.
- Court held Correa’s notice issue was waived by participation; however, U.S. Bank failed to prove the terms of the note or its right to enforce the lost instrument under section 673.3091(2); the evidence was insufficient to reestablish the lost note.
- Ultimately, the court reversed and remanded for involuntary dismissal due to failure to prove the lost-note terms and enforceability; Guerrero clarified potential remand but not applicable here; the case was not remanded for a new evidentiary hearing on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the lost note reestablishment was supported by sufficient evidence | Correa | U.S. Bank | Insufficient evidence to reestablish the lost note |
| Whether Correa waived Rule 1.440(c) notice objection | Correa | U.S. Bank | Notice issue waived by trial participation |
| Appropriate disposition after failure to prove the lost note | Correa; request for involuntary dismissal/remand | U.S. Bank; should be allowed to reestablish | Remand with involuntary dismissal of the complaint |
| Adequate protection requirement under § 673.3091(2) not preserved | Correa | U.S. Bank | Issue not preserved on appeal; remand issue noted |
Key Cases Cited
- Guerrero v. Chase Home Fin., LLC, 88 So.3d 970 (Fla. 3d DCA 2012) (remand for proper lost-note proceedings where not properly pleaded)
- Beaumont v. Bank of N.Y. Mellon, 81 So.3d 553 (Fla. 5th DCA 2012) (adequate protection concept in lost-note cases)
- Connelly v. Matthews, 899 So.2d 1141 (Fla. 4th DCA 2005) (adequate protection considerations when note loss uncertain)
- Deakter v. Menendez, 830 So.2d 124 (Fla. 3d DCA 2002) (loss of possession not resulting from transfer can support enforcement)
- Morton’s of Chi., Inc. v. Lira, 48 So.3d 76 (Fla. 1st DCA 2010) (court generally not retrying cases on failure of proof; avoid second bite at apple)
- Zumpf v. Countrywide Home Loans, Inc., 43 So.3d 764 (Fla. 2d DCA 2010) (waiver and preservation considerations in notice issues)