{"id":1912,"date":"2021-08-04T14:18:27","date_gmt":"2021-08-04T14:18:27","guid":{"rendered":"https:\/\/bresky-merger.local.com\/posts\/bresky-law-obtains-reversal-of-order-denying-motion-for-return-of-original-loan-documents\/"},"modified":"2021-08-04T14:18:27","modified_gmt":"2021-08-04T14:18:27","slug":"bresky-law-obtains-reversal-of-order-denying-motion-for-return-of-original-loan-documents","status":"publish","type":"post","link":"https:\/\/ssrga.com\/appellate\/bresky-law-obtains-reversal-of-order-denying-motion-for-return-of-original-loan-documents\/","title":{"rendered":"Bresky Law Obtains Reversal of Order Denying Motion for Return of Original Loan Documents"},"content":{"rendered":"

Bresky Law recently obtained reversal of a trial court order denying our client\u2019s motion for return of its original loan documents following a foreclosure proceeding. <\/p>\n

The plaintiff filed suit to foreclose a note and mortgage. The case proceeded to a nonjury trial at which the plaintiff introduced what it contended were the original note and mortgage. The defendant presented unrebutted expert witness testimony from a forensic document examiner opining that the signature on the note and allonges was a photocopy. The trial court rejected the expert witness testimony and entered final judgment for the plaintiff. The Second DCA reversed, holding that the trial court had erred in arbitrarily rejecting the expert witness testimony (and that the error was the only way the trial court could have ruled for the plaintiff), and the plaintiff had failed to meet its burden to prove standing.<\/p>\n

On remand, the trial court entered judgment for the defendant pursuant to the Second DCA\u2019s opinion. The plaintiff later filed a motion for return of the loan documents from the clerk. The defendant opposed the motion and argued that the Second DCA had determined in the appeal that the loan documents were not authentic. The trial court denied the plaintiff\u2019s request for return of its loan documents and expressed concern about releasing back into the stream of commerce the loan documents that allegedly did not have an original signature. <\/p>\n

We represented the plaintiff on the appeal of the order denying its motion for return of the loan documents. We stressed that, contrary to the defendant\u2019s assertions, no court had determined that the signature on the note and allonges was not an original. We argued that a plaintiff to a foreclosure case is entitled to the return of its original loan documents where no final judgment cancels the note. We relied on the recent cases of U.S. Bank Nat\u2019l Ass\u2019n v. Rodriguez, 256 So. 3d 882 (Fla. 4th DCA 2018), Santiago v. U.S. Bank Nat\u2019l Ass\u2019n, 257 So. 3d 1145 (Fla. 5th DCA 2018), and Kajaine Estates, LLC v. U.S. Bank Nat\u2019l Ass\u2019n, 198 So. 3d 1010 (Fla. 5th DCA 2016). We pointed out that the issue of whether our client had established standing to foreclose on the note was separate from its ownership of the note or whether the note has been canceled. <\/p>\n

The Second DCA agreed with Bresky Law\u2019s arguments on behalf of our client. The Second DCA clarified that it had made no finding in the prior appeal that the loan documents were not originals. It further clarified that its prior holding was only that the trial court erred in arbitrarily rejecting the expert\u2019s testimony and that mistakenly doing so \u201cwas the only way [the trial court] could have ruled in [plaintiff\u2019s] favor on the standing question.\u201d The Second DCA relied upon the case law cited in our appellate briefs and held that our client was entitled to return of the loan documents as there was no judgment canceling the note.<\/p>\n

The Second DCA reversed the trial court\u2019s order and remanded with instructions for the court to direct the clerk to release the loan documents to our client. This favorable result for our client returns its valuable loan documents and allows it to proceed accordingly, including possibly filing a new foreclosure action.<\/p>\n