## Facts

- Hartley Lord executed a promissory note and mortgage in favor of an original lender.
- After multiple assignments, the instruments were assigned to EMC Mortgage Corporation, which then assigned them to State Street Bank & Trust Company as trustee for a mortgage-backed securities trust.
- State Street filed a foreclosure action and alleged it had received the original note and mortgage.
- The summary-judgment record established that State Street never possessed the original promissory note.
- The record further established that EMC (State Street’s assignor) also never possessed the original note.
- State Street sought to proceed under Florida’s lost-instrument procedures, including Fla. Stat. §§ 71.011 and 673.3091.

## Issues

1. Whether an assignee mortgagee may enforce a promissory note and foreclose a mortgage as a lost instrument when neither the assignee nor its assignor ever possessed the original note.
2. Whether the right to enforce a lost note under Fla. Stat. § 673.3091 can be assigned when the assignor did not satisfy the statute’s possession-at-loss prerequisites.

## Decision

- The Fourth District Court of Appeal affirmed summary judgment for Lord.
- The court held State Street could not, as a matter of law, enforce the note or foreclose the mortgage because neither State Street nor EMC ever possessed the original note.
- The court concluded § 673.3091’s limited lost-note exception did not apply because the statutory requirement of possession and entitlement to enforce at the time of loss was not met by State Street or its predecessor.

## Legal Principles

- In a Florida mortgage foreclosure, the plaintiff must produce the original promissory note or provide a satisfactory explanation for nonproduction consistent with the law governing lost instruments.
- Fla. Stat. § 673.3091 permits enforcement of a lost, destroyed, or stolen instrument only if the enforcing party was in possession and entitled to enforce the instrument when the loss occurred, the loss was not due to transfer or lawful seizure, and the instrument cannot reasonably be obtained.
- An assignee cannot acquire the right to enforce a lost note under § 673.3091 where neither the assignee nor its assignor ever possessed the note and thus did not meet the statute’s prerequisites at the time of assignment.

## Conclusion

The court affirmed judgment for the borrower, holding that a foreclosure plaintiff cannot rely on Florida’s lost-note statute to enforce a missing promissory note when neither it nor its predecessor ever possessed the note and therefore could not satisfy the statutory conditions for lost-instrument enforcement.


State Street Bank & Tr. Co. v. Lord, 851 So. 2d 790 (Fla. 4th DCA 2003)