        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                        WELLS FARGO BANK, N.A.,
                               Appellant,

                                       v.

      MARGARETH F. BRICOURT and STEPHANIE J. BRICOURT,
                         Appellees.

                                No. 4D19-325

                             [February 12, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry J. Stone, Senior Judge; L.T. Case No. CACE16-
009010.

  William J. Simonitsch and Stephen A. McGuinness of K&L Gates LLP,
Miami, for appellant.

    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellees.

DAMOORGIAN, J.

   Wells Fargo Bank, N.A. (“the Bank”) appeals a judgment in favor of
Appellees, Margareth F. Bricourt and Stephanie J. Bricourt (“Borrowers”).
The Bank argues the court erred in applying the wrong legal standard for
reestablishing a lost note under § 673.3091(1)(c), Florida Statutes (2019),
and that it met its burden of proof to reestablish its lost note. Borrowers
counter that the generalized testimony of the witness was insufficient to
reestablish the Bank’s lost note. 1 Finding merit in the Bank’s argument,
we reverse and remand for entry of judgment in favor of the Bank.

   By way of background, in 2009, the Bank filed its first foreclosure
action against Borrowers. The original promissory note was filed in the
case with the clerk of court. A foreclosure judgment was subsequently
entered. Prior to the foreclosure sale, the parties agreed to a loan
modification and the Bank dismissed its foreclosure action. The clerk’s

1 Borrowers also argue that the Bank abandoned its argument that the witness’
testimony satisfied the lost note requirements. Our review of the record leads us
to the opposite conclusion that the matter was preserved.
notes in that foreclosure case reflected that the original note was returned
to the Bank in 2011 without stating to whom the note was sent. A few
years later, the parties entered into a second loan modification. Borrowers
breached that loan modification agreement, and in 2016 the Bank filed its
second foreclosure action against Borrowers.

    The second foreclosure action is the genesis of this appeal. The Bank
alleged the original note had been inadvertently lost, misplaced or
destroyed. Attached to the complaint was a copy of the note, which
included a special indorsement from the original lender to the Bank, and
a second indorsement in blank from the Bank. Also attached was a Lost
Note Affidavit.

   The matter proceeded to a bench trial where the Bank presented its
case through the testimony of a loan verification analyst (“the witness”).
The witness testified that the location of the original note was unknown
and that she examined the Bank’s records and was “not able to find any
records that show receipt of the original note” after the first foreclosure
case was dismissed in 2011. Upon discovering that the original note had
been lost, the witness testified that the Bank conducted a diligent search
which the witness described as follows:

      A due diligence audit is done. We first check the servicing
      facility vault to see – to make sure the note is not there. We
      also check any boxes – storage on behalf of the custodial
      boxes. We check with prior attorneys, current attorneys.

      So, we do a very in depth research in an effort to locate the
      note. If one is not found, then an affidavit is produced or, you
      know, we advise our Counsel of record at the time that the
      note is lost and seek advice.

   The witness testified that she personally conducted an investigation to
look for the lost note in preparation for trial. The witness further testified
that there was no record reflecting that the original note had been
transferred or seized. She testified to the terms of the note and that the
Bank would agree to indemnify Borrowers in the event the original note
was found and another party attempted to enforce it.

   In addition to the aforementioned testimony, the Bank introduced into
evidence: (1) a report from the Bank’s record confirming that it had
possession of the original note before filing its first foreclosure action in
2009; (2) the clerk’s docket entries from the first foreclosure action to
establish the last time the Bank had physical possession of the original

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note, as well as the date the clerk “[r]eturned” it to the Bank; (3) a copy of
the original note with a blank endorsement, the assignment of the
mortgage and note, and both loan modification agreements.

    Borrowers did not present any evidence contradicting the Bank’s
testimony regarding the procedures and steps taken to search for the
original note. The court denied the Bank’s request to admit the Lost Note
Affidavit into evidence. At the close of evidence, the court found that the
Bank was “entitled to enforce the instrument when loss of possession
occurred” and that loss of possession was not the result of transfer by the
Bank or lawful seizure. However, the court found that the witness did not
explain “how she searched for the note” and “the substantive nature of the
search” to satisfy section 673.3091(1)(c), Florida Statutes (2019). The
court entered a judgment for Borrowers, and this appeal follows.

   It is well established that “a plaintiff in a foreclosure action must
establish its standing both at the time the complaint was filed and when
judgment is entered.” Spicer v. Ocwen Loan Servicing, LLC, 238 So. 3d
275, 278–79 (Fla. 4th DCA 2018). “One way a foreclosure plaintiff may
establish standing is by proving that the borrower’s note is lost and that
the plaintiff is entitled to enforce the lost note pursuant to section
673.3091, Florida Statutes.” Deutsche Bank Nat’l Tr. Co. v. Smith, 276 So.
3d 315, 317–18 (Fla. 4th DCA 2019). Section 673.3091, Florida Statutes,
sets forth the requirements for enforcement of a lost note:

      (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.


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      (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. 673.3081 applies 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.

§ 673.3091(1)–(2), Fla. Stat. (2019). “A party seeking to reestablish a lost
note may meet these requirements either through a lost note affidavit or
by testimony from a person with knowledge.” Home Outlet, LLC v. U.S.
Bank Nat’l Ass’n, 194 So. 3d 1075, 1078 (Fla. 5th DCA 2016). At issue in
this case is the requirement of subsection 673.3091(1)(c), Florida Statutes.

   Here, through the witness’ testimony and unrebutted documentary
evidence, the Bank established the following: (1) the last time it had
physical possession of the original note, as well as the date it was
“returned” from the clerk, showing the Bank was entitled to enforce the
note at the time it was lost; (2) there were no records reflecting that the
original note had been transferred or seized; (3) the Bank agreed it would
indemnify the Borrowers in the event the original note was found and
another party attempted to enforce it; and (4) the Bank conducted a
thorough examination of its records, and followed procedures to locate the
lost note, which included examining the servicing facility vault and
custodial boxes, and checking with other persons who may be in
possession of the note, including attorneys involved with the prior
foreclosure proceeding.

   In U.S. Bank, Nat’l Ass’n v. Angeloni, 199 So. 3d 492, 493–94 (Fla. 4th
DCA 2016), we held that the following similar witness testimony and
evidence was sufficient to meet the statutory requirements of
reestablishing a lost note:

      The originals of the note and blank-indorsed allonge were sent
      to a law firm in 2006, prior to the filing of the original
      complaint. The witness had searched for the original note in
      the law firm’s vault and mortgage room, verified that the
      original had not been filed with the court, and instituted a
      custodial search with the employees of the firm, but the note
      could not be located. The bank’s witness testified that the note

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      was not lost due to a transfer by LaSalle or a lawful seizure
      and that the bank was willing to indemnify anyone if a third-
      party were to attempt to enforce the note.

     Further, it is sufficient for the witness to simply testify that he or she
conducted a search for the lost note but could not locate it. See Connelly
v. Matthews, 899 So. 2d 1141, 1143 (Fla. 4th DCA 2005) (finding that
section 673.3091(1)(c), Florida Statutes, was satisfied with testimony that
the document was lent for purposes unrelated to the case). Other courts
have also held the same. See Boumarate v. HSBC Bank USA, N.A., 172 So.
3d 535, 537 (Fla. 3d DCA 2015) (there is no statutory requirement for the
bank to establish “exactly when, how, and by whom the note was lost.”);
Deakter v. Menendez, 830 So. 2d 124, 127 (Fla. 3d DCA 2002) (stating that
the party seeking to enforce a promissory note “stated under oath that the
. . . note was either inadvertently destroyed or lost, which is all the statute
requires.”).

   Based on the unrebutted testimonial and documentary evidence
introduced at trial, the Bank met its statutory burden of proof and is
entitled to enforcement of its lost note and a judgment of foreclosure.
Accordingly, we reverse the judgment in favor of the Borrowers and
remand for entry of judgment of foreclosure in favor of the Bank.

   Reversed and remanded.

GROSS and KLINGENSMITH, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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