                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

BRIAN and CYNTHIA                    NOT FINAL UNTIL TIME EXPIRES TO
POAG,                                FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellants,
                                     CASE NO. 1D15-2464
v.

NATIONSTAR
MORTGAGE, LLC,

      Appellee.

_____________________________/

Opinion filed August 11, 2016.

An appeal from the Circuit Court for Duval County.
A. C. Soud, Jr., Senior Judge.

Thomas R. Pycraft, Jr., John J. Spence, David D. Naples, Jr., and Michael J.
Pelkowski of Pycraft Law LLC, St. Augustine for Appellants.

Nancy M. Wallace of Akerman, LLP, Tallahassee, William P. Heller of Akerman,
LLP, Fort Lauderdale, and Eric M. Levine of Akerman, LLP, West Palm Beach,
for Appellee.




PER CURIAM.

      Brian and Cynthia Poag appeal a final judgment reestablishing a lost note in

favor of Nationstar Mortgage, LLC. The Poags argue that Nationstar failed to

prove reestablishment of the lost note under section 673.3091, Florida Statutes
(2014). Because the evidence was insufficient to support reestablishment of the

lost note, we reverse the final judgment.

      The Poags executed a promissory note on October 14, 2005, in favor of

Nationstar. On September 18, 2012, Nationstar filed a complaint to reestablish a

lost note under section 673.3091, Florida Statutes, and for foreclosure on the

mortgage securing that lost note. Nationstar alleged that the Poags defaulted on the

loan by failing to make the June 15, 2009 payment, as well as all subsequent

payments. Nationstar alleged that it was in possession of the lost note and entitled

to enforce it when the loss of possession occurred. A copy of the note (reflecting a

blank endorsement) was attached to the complaint. Prior to trial, Nationstar was

served with a request for admissions, which requested Nationstar to admit the

following:

      1. Admit that [Nationstar] was not in physical possession of the
      original Note endorsed in blank on the date of the inception of this
      lawsuit.

      2. Admit that the last entity in physical possession of the original Note
      was the Law Office of Marshall C. Watson, P.A.

      3. Admit that Nationstar Mortgage, LLC was not in physical
      possession of the original Note when the loss of the possession of
      Note occurred.

      4. Admit that [Nationstar] was not the “owner” of the subject Note on
      the date loss of the Note. . . .

      5. Admit that [Nationstar] is not the owner of the Note.

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      6. Admit that [Nationstar] did not send [the Poags] a letter in
      compliance with Paragraph 22 of the Mortgage prior to the inception
      of this lawsuit.

      Nationstar failed to timely respond to the request for admissions. The

foregoing requests were technically admitted pursuant to Florida Rule of Civil

Procedure 1.370(a), which provides that matters are admitted unless the party

serves a written answer or objection within thirty days of service to the party

requesting the admission. Fla. R. Civ. P. 1.370(a). Subdivision (b) outlines the

effect of an admission under this rule, stating that the admission “is conclusively

established unless the court on motion permits withdrawal or amendment of the

admission.” Fla. R. Civ. P. 1.370(b). Although Nationstar sought relief from the

admissions at the end of the bench trial through an ore tenus motion, the trial court

denied relief, conclusively establishing the admissions. *

      “A finding that a lost note is reestablished, under section 673.3091, Florida

Statutes, is reversible upon the appellate court’s determination of a failure of

proof.” Seidler v. Wells Fargo Bank, N.A., 179 So. 3d 416, 417 (Fla. 1st DCA

2015) (citing Correa v. U.S. Bank, N.A., 118 So. 3d 952 (Fla. 2d DCA 2013)). In

order to prove a claim to reestablish a lost note, the party seeking reestablishment

must meet the requirements under section 673.3091. See Blitch v. Freedmon

Mortg. Corp., 185 So. 3d 645, 645-46 (Fla. 2d DCA 2016) (quoting § 673.3091,

      *
         Nationstar has not cross-appealed the trial court’s denial of its motion for
relief from technical admissions.
                                         3
Fla. Stat. (2014)); see Correa, 118 So. 3d at 955 (“For the requirements to

reestablish a lost note we look to section 673.3091, Florida Statutes (2007).”).

Section 673.3091 provides the requirements for entitlement to enforce a lost note

as follows:

      (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 amendable to service of process.

§ 673.3091(1), Fla. Stat. (2014). Under the first requirement of section

673.3091(1), Nationstar had to prove that it was entitled to enforce the note when

loss of possession occurred. Section 673.3011, Florida Statutes (2014), defines a

person entitled to enforce an instrument as “(1) The holder of the instrument; (2) A

nonholder in possession of the instrument who has the rights of a holder; or (3) A

person not in possession of the instrument who is entitled to enforce the instrument

pursuant to s. 673.3091 or s. 673.4181(4).” § 673.3011, Fla. Stat. (2014).

      Because the conclusively established admissions foreclose the ability to

prove Nationstar was the bearer, holder, or possessor of the note in question, the

trial court erred in finding that the evidence was sufficient to support

                                         4
reestablishment of the lost note. As such, the final judgment reestablishing the lost

note is reversed and remanded for judgment in favor of Appellants.

WETHERELL and WINOKUR, JJ., CONCUR; MAKAR, J., CONCURS WITH
OPINION.




                                         5
MAKAR, J., concurring.

      Nationstar Mortgage sought to do two separate things in the proceedings

below: (a) reestablish a lost note and (b) enforce the note once reestablished. The

trial court reestablished the lost note but refused to enforce it because Nationstar’s

failure to respond to requests for admissions—now deemed admitted—foreclosed

the bank’s ability to seek enforcement.

      The trial court correctly denied enforcement of the note, but erred in

reestablishing the note under section 673.3091, Florida Statutes (2014), which is

limited to the “[e]nforcement of lost, destroyed, or stolen instrument[s].”

(Emphasis added). Reestablishment and enforcement are not the same. Section

673.3091, which has more difficult enforcement standards, does not itself set forth

reestablishment standards for a lost note. Instead, section 71.011, Florida Statutes

(2014), entitled “Reestablishment of papers, records, and files,” contains the

general standards for doing so. The problem is that Nationstar did not rely on

section 71.011 in the trial court proceedings and raised the statute for the first time

on appeal. For this reason, and because no fundamental error is shown, vacating

the reestablishment of the note is proper.

      The question of whether section 673.3091 displaces section 71.011 as to the

standards for reestablishing a note is a debatable one. At least one court views it as

having this effect. See Mason v. Rubin, 727 So. 2d 283, 284 (Fla. 4th DCA 1999)

                                             6
(stating that “[e]stablishing a lost negotiable instrument is governed by . . . section

673.3091 . . .     [which] contains more stringent requirements than [section

71.011].”) (emphasis added). The contrary argument is that a note can be

reestablished under the plain language of section 71.011, but that its enforcement is

governed by section 673.3091. This issue cannot be resolved given the lack of

preservation of the issue in this case (and the absence of fundamental error), but

ought to be addressed in a future case to provide clear guidance to trial courts.




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