Requirement of Original, Uncanceled Promissory Note

Florida law requires the production of the original note for a party to recover on same. A payee's possession of an original uncanceled promissory note raises a presumption of non-payment that shifts the burden of proof to the payor to establish payment or another defense.   In the absence of the original note, the burden will then be on the plaintiff to affirmatively establish his right to recover on the lost or destroyed note pursuant to Florida Statute section 673.3091, and that he is holder in due course and therefore entitled to enforce the note. 

In that regard, Florida Statute section 673.3011 provides in pertinent part that: A “person entitled to enforce” an instrument includes (1) the holder of the instrument or (2) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to section 673.3091.  A holder in due course is a holder who takes an instrument without apparent evidence of forgery or alteration for value, in good faith, and without notice of certain claims and defenses. Accordingly, if a party is claiming that it is the holder in due course, said party has the burden to prove that status by a preponderance of the evidence. 

Additionally, while it is true that In order to recover on a promissory note, the holder must produce the actual note, where a note has been lost, stolen, or destroyed, the holder can seek enforcement but only by complying with the requirements of Florida Statute section 673.3091.  In that regard, section 673.3091 requires that 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.  The statute further requires the person seeking enforcement of a lost, destroyed or stolen instrument to prove the terms of the instrument and the person's right to enforce 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.

The attorneys at Schecter Law have vast experience in all aspects of complex commercial and residential loan disputes.   Furthermore, our attorneys’ vast experience in the area of Florida foreclosure law enables us to assist our clients in developing creative and cost-effective solutions to mortgage foreclosure and deficiency related issues.