Friday, January 20, 2012

Florida Evidence Code requires ORIGINAL negotiabler instrument


Guess What, Florida foreclosure defense fans? 


The Florida evidence code prohibits admission of a COPY of the MORTGAGE NOTE into evidence.



90.952 Requirement of originals.—Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 1, ch. 77-174; s. 22, ch. 78-361; s. 1, ch. 78-379.

90.953 Admissibility of duplicates.—A duplicate is admissible to the same extent as an original, unless:

(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.

(2) A genuine question is raised about the authenticity of the original or any other document or writing.

(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 57, ch. 92-82; s. 29, ch. 99-2.


Compare this to the corresponding Federal Rules of Evidence:



An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.



A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.


This difference appears to give Florida Foreclosure defenders an opportunity to denounce a copy of a note as admissible, even though the borrower made a stream of payments on a note the borrower THOUGHT existed (but which did not in fact exist).



However, in Florida, the Court may reestablish an original under certain circumstances:


71.011 Reestablishment of papers, records, and files.—All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be reestablished in the manner hereinafter provided.

(1) WHO MAY reestablish.—Any person interested in the paper, file or record to be reestablished may reestablish it.

(2) VENUE.—If reestablishment is sought of a record or file, venue is in the county where the record or file existed before its loss or destruction. If it is a private paper, venue is in the county where any person affected thereby lives or if such persons are nonresidents of the state, then in any county in which the person seeking the reestablishment desires.

(3) REMEDY CONCURRENT.—Nothing herein shall prevent the reestablishment of lost papers, records and files at common law or in equity in the usual manner.

(4) EFFECT.—

(a) Any paper, record or file reestablished has the effect of the original. A private paper has such effect immediately on recording the judgment reestablishing it, but a reestablished record does not have that effect until recorded and a reestablished paper or file of any official, court or public officer does not have that effect until a certified copy is filed with the official or in the court or public office where the original belonged. A certified copy of any reestablished paper, the original of which is required or authorized by law to be recorded, may be recorded.

(b) When any deed forming a link in a chain of title to land in this state has been placed on the proper record without having been acknowledged or proven for record and has thereafter been lost or destroyed, certified copies of the record of the deed as so recorded may be received as evidence toreestablish the deed if the deed has been so recorded for 20 years.

(5) COMPLAINT.—A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against suchreestablishment.

History.—s. 5, Nov. 21, 1829; s. 12, ch. 1369, 1862; s. 2, ch. 3019, 1877; RS 1523-1527, 1533; s. 1, ch. 5162, 1903; GS 1978-1982, 1997; RGS 3246-3250, 3265; CGL 5054-5058, 5073; s. 7, ch. 22858, 1945; s. 24, ch. 67-254.

Note.—Former ss. 71.01-71.06.



Foreclosure defenders sometimes get hoodwinked by plaintiffs with this effort to enforce a lost note:


673.3091 Enforcement of lost, destroyed, or stolen instrument.

(1) A person not in possession of an instrument is entitled to enforce the instrument if:

(a) The person seeking to enforce the instrument was entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

(b) The loss of possession was not the result of a transfer by the person or a lawful seizure; and

(c) The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, s. 673.3081applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

History.s. 2, ch. 92-82; s. 1, ch. 2004-3.



Ask yourself whether you, as judge, would enforce a non-existent note that you could not lawfully admit into evidence.






Bob Hurt

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