Florida District Courts of Appeal, 2013

Boumarate v. HSBC Bank USA, N.A.

Florida District Courts of Appeal · Decided March 28, 2013 · Griffin, Jacobus, Palmer

109 So. 3d 1239; 2013 WL 1234322; 2013 Fla. App. LEXIS 5140 (Southern Reporter, Third Series)

Cases that cite this one

4 later published cases cite this decision.

Craig D. Lamb v. Nationstar Mortgage, LLC (Fla. Dist. Ct. App. 2015)
Boumarate v. HSBC Bank USA, N.A. (Fla. Dist. Ct. App. 2015)
Mark Pennington v. Ocwen Loan Servicing, LLC (Fla. Dist. Ct. App. 2014)
Lovette v. National Collegiate Student Loan Trust 2004-1 (Fla. Dist. Ct. App. 2014)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

GRIFFIN, J.

Abdallah Boumarate and Jennifer Bratc-hell-Boumarate [“Appellants”] appeal a summary final judgment entered by the trial court in favor of HSBC Bank, N.A. [“the Bank”] to foreclose a residential mortgage and recover on a promissory note executed in favor of Novelle Financial Services, Inc. in connection with the mortgage. The complaint contained both a count for foreclosure and a second count to re-establish a lost instrument (the note) pursuant to section 673.3091, Florida Statutes.

In order to be entitled to judgment, the Bank must prove its right to enforce the note as of the date of the summary judgment hearing, including how it obtained the Novelle Financial Services note and the circumstances of its loss.1 Beaumont v. Bank of New York Mellon, 81 So.3d 553, 554-55 (Fla. 5th DCA 2012). The Bank did file a “lost instrument affidavit,” but it merely averred that it currently held the note, but could not find it. The Bank does not dispute its burden of proof on this point; it merely argues that by *1240failing to raise this issue in its pleading, Appellants lost their right to complain of the defect. However, this burden remained with the bank. Beaumont, 81 So.3d at 555; Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So.3d 773 (Fla. 4th DCA 2011).

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

. The Bank's "standing” was not an issue due to Appellants’ default.

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