Florida/Georgia Personal Injury & Workers Compensation

...ich it is the evidence, or the rights and liabilities of the parties to the instrument. 35 Fla. Jur.2d Lost & Destroyed Instruments & Records § 4 (2009). While it would be preferable to reestablish the written instrument in the manner authorized by section 71.011, Florida Statutes (2008), the failure to do so is not fatal to ESI's attempt to enforce the agreement against LeJeune, provided that the trial court is satisfied as to its essential terms....

...d have sought to reestablish the note pursuant to Florida statutes. A party may enforce its rights by reestablishing the lost, stolen, or destroyed paper or instrument under the applicable statutes and then sue upon the reestablished instrument. See § 71.011, Fla....

...h the note and foreclose on the mortgage. There, the trial court entered a final judgment, ruling that it was adopting the fact findings made on the record. One of the court's findings was a determination that the note was re-established pursuant to section 71.011....

...tgage. In granting summary judgment in favor of the Badras, the trial court found the lost note unenforceable as a matter of law. In this action, MERS relied on section 673.3091, Florida Statutes. In the earlier foreclosures, the mortgagee relied on section 71.011 in seeking to re-establish the note....

...or their privies, and a final decision has been rendered by a court. See Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1131 (Fla. 4th DCA 2003). We recognize that in Badra I, the trial court said it was re-establishing the note pursuant to section 71.011, Florida Statutes, rather than the statutory section relied on here by MERS....

...hat either the mortgagee, or its assignor, ever had possession of the missing promissory note. A summary judgment was entered in favor of the mortgagor, Hartley Lord. We affirm. State Street sought to establish the promissory note and mortgage under section 71.011, Florida Statutes....

...Citibank, F.S.B., 710 So.2d 654 (Fla. 3d DCA 1998), the court affirmed a summary judgment allowing foreclosure but reversed on the re-establishment claim where there was a question of fact as to whether the plaintiff could re-establish the terms of the promissory note under section 71.011(5). Although it appears that O'Donovan permits foreclosure even where the promissory note is not re-established, the Third District applied section 71.011 governing enforcement of lost papers, records, or files, and not section 673.3091....

...The second count alleges that the buyer executed and delivered to the sellers the purchase money note and mortgage as provided in the land sales contract but that those instruments have been lost and the sellers seek to reestablish those documents under section 71.011, Florida Statutes (1981)....

...interest. Here again the complaint alleges that the payments due on the note are payable at the office of an attorney in Lake County, Florida. The buyer moved for a change of venue to St. Johns County and appeals the denial of its motion. We affirm. Section 71.011(2), Florida Statutes (1981), provides that when reestablishment of a private paper is sought "venue is in the county where any person affected thereby lives." Appellant, buyer, argues that as the alleged maker of the alleged purchase m...

...rally results in waiver." Kissman v. Panizzi, 891 So.2d 1147, 1150 (Fla. 4th DCA 2005). In any event, the record reflects that First Union was in possession of the note at the time it was lost, and the trial court re-established the note pursuant to section 71.011, Florida Statutes....

...husband bringing this foreclosure action. The trial court denied the foreclosure. The husband raises as his first point that the trial court erred in failing to reestablish the promissory note, which was lost. He argues that his proof complied with section 71.011, Florida Statutes (1995), which provides for establishing lost papers, records or files. Section 71.011 controls the establishment of lost documents "except when otherwise provided." The lost promissory note was a negotiable instrument....

...Upon the commendable and appropriate confession of error of the appellee, summary judgment was improvidently entered on this count where the appellee was unable to supply a substantial copy of the lost promissory note to prove its essential terms as is generally required by section 71.011(5), Florida Statutes (1997)....

...Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellants. James M. Fishman, Miami, for appellee. Before COPE, GODERICH and GREEN, JJ. PER CURIAM. Appellants appeal an adverse summary judgment entered in favor of appellee on his action brought pursuant to section 71.011, Florida Statutes (1993) for the reestablishment of a purportedly "lost" promissory note....

...default by a mortgagor. As a result, section 673.3091 does not create a standalone cause of action apart from a breach. The Mielkes’ argument conflates the requirements of section 673.3091 with the right to reestablish a lost document under section 71.011, Florida Statutes. Unlike section 673.3091, section 71.011 does create a standalone cause of action: 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...

...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 such reestablishment. § 71.011(5), Fla....

...force it and describe the conditions for such enforcement; it actually sets out a procedure for an entity to reestablish a lost document, starting with the filing of a complaint demonstrating an entitlement to it. Deutsche Bank did not rely on section 71.011 in its foreclosure complaint....

...ht into the action and the matter determined. The *697 instruments should then be reestablished, recorded and an appropriate judgment entered. Affirmed in part, reversed in part and remanded. LILES, Acting C. J., and McNULTY, J., concur. . Fla.Stat. § 71.011, F.S.A.

...inal note had been lost or destroyed. In addition to other matters of defense, the makers-payors claimed that, procedurally, the plaintiff, as owner-payee of the lost or destroyed note, was required to reestablish the note in a separate action under section 71.011, Florida Statutes, as a condition precedent to action on the note. The owner-payee of the note argued that one direct action could be brought on the lost or destroyed note under section 673.-804, Florida Statutes. The makers-payors argue that because section 71.011 and section 673.804 are in conflict and section 71.-011 was enacted after section 673.804, therefore section 71.011 prevailed over section 673.804....

...The owner of a lost, destroyed or stolen negotiable instrument may proceed under section 673.804, Florida Statutes, by direct action against the obligors (makers and endorsers) on the instrument without first re-establishing the lost, destroyed or stolen instrument in a separate action under section 71.011, Florida Statutes....

from the case before us because in Jarvis, section 71.011(2), the statute relied on by the appellant

...Specifically, counts I through IV sought injunctive relief, damages for breach of contract, and damages for civil conspiracy against the appellees. Counts V and VI sought to reestablish each of the non-competition agreements executed by Feld- *971 man and Saavedra pursuant to section 71.011(4), Florida Statutes (1995) because the originally executed documents had been lost....

...These counts were dismissed not on grounds asserted by appel-lees but upon the general master’s conclusion that Carlsen could not seek the reestablishment of the lost documents simultaneously in a action for the breach and/or enforcement of these lost documents. In other words, the court construed section 71.011 to mean that the reestablishment of the lost document in a separate action was a condition precedent to initiating an action for the breach and/or enforcement of such documents....

...Carlsen’s timely filed exceptions to the general master’s involuntary dismissal of counts I through TV were denied by the trial court below and an amended final judgment was entered pursuant to the general master’s report. This appeal followed. Section 71.011(4) provides in relevant part that: (a) Any paper, record or file reestablished has the effect of the original....

...We conclude that the court erred in construing this statute to effectively preclude an action for the reestablishment of a lost document and an action for the breach and/or enforcement of the lost document from proceeding in the same lawsuit. We agree with Carlsen that the plain language of section 71.011(4)(a) states only that upon the recording of a judgment reestablishing a lost document, a copy of such document will be given the same effect as the original....

...“ ‘The better opinion is that when the indictment is lost the prosecution may proceed to trial on a substituted copy, if exact, and the proof of it conclusive.’ ” Roberson, 45 Fla. at 102 , 34 So. at 296 (citations omitted). Two statutes of considerable antiquity also address the point. See §§ 71.011(5), 71.031, Fla.Stat. (1995). 1 The state filed a motion to reestablish the record, citing sections 71.011 and 71.031, Florida Statutes. The procedure followed by the state was a permissible one. The motion set forth the information specified by subsection 71.011(5), including the date of filing of the information, the clerk’s discovery that the document had been lost or destroyed, and the assertion that the copy of the information attached to the motion was an exact copy of the text of the original....

...The court directed the parties to research the question of what procedure to follow in a situation like the present one which, judging from the lack of reported cases, has arisen only infrequently in Florida history. In response, the state unearthed sections 71.011 and 71.031, Florida Statutes, and filed its motion in conformity therewith....

...Those statutes do not require the filing of any affidavits. 7 The statutes contemplate the filing of a pleading which sets forth the grounds on which the petitioner relies to reestablish the lost document, which will then be resolved by evidentiary hearing if there is a factual dispute. See § 71.011(5), Fla.Stat....

...paper or file in chancery and giving 10 days' written notice to all parties to the action of the application for reestablishment of the proceedings, paper or file. On the hearing the judge shall ascertain the facts and determine the application. Subsection 71.011, Florida Statutes, provides: (5) COMPLAINT....

...for reestablishing a lost judicial record is now within the Florida Supreme Court’s exclusive rulemaking jurisdiction. See Art. V, § 2(a), Fla. Const. If so, the statutory procedure would not be binding but may provide useful guidance. . Sections 71.011 and 71.031 do not require the filing of affidavits, although it is a desirable practice....

reestablishment standards for a lost note. Instead, section 71.011, Florida Statutes (2014), entitled “Reestablishment