Boumarate v. HSBC Bank USA, N.A.

District Court of Appeal of Florida

Boumarate v. HSBC Bank USA, N.A.

109 So. 3d 1239, 2013 WL 1234322, 2013 Fla. App. LEXIS 5140

CourtDistrict Court of Appeal of Florida

DecidedMarch 28, 2013

DocketNo. 5D12-1269

StatusPublished

Cited by4 cases

This text of 109 So. 3d 1239 (Boumarate v. HSBC Bank USA, N.A.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Boumarate v. HSBC Bank USA, N.A., 109 So. 3d 1239, 2013 WL 1234322, 2013 Fla. App. LEXIS 5140 (Fla. Ct. App. 2013).

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Opinion

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 [1240]*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.

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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 [1240]*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.

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109 So. 3d 1239, 2013 WL 1234322, 2013 Fla. App. LEXIS 5140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boumarate-v-hsbc-bank-usa-na-fladistctapp-2013.

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