Boumarate v. HSBC | Fla 5th DCA - (Lost Note Affidavit) It is the bank's burden to prove its right to enforce the note at the time of summary judgment.

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Boumarate v. HSBC | Fla 5th DCA – (Lost Note Affidavit) It is the bank’s burden to prove its right to enforce the note at the time of summary judgment.

Boumarate v. HSBC | Fla 5th DCA – (Lost Note Affidavit) It is the bank’s burden to prove its right to enforce the note at the time of summary judgment.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2013

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

ABDALLAH BOUMARATE, ET AL., ,
Appellant,

v.

HSBC BANK USA, N.A., ETC., ,
Appellee.
________________________________/
Opinion filed March 28, 2013

Case No. 5D12-1269

Appeal from the Circuit Court
for Seminole County,

Alan A. Dickey, Judge.

Richard W. Withers, Craig L. Lynd and
Angela M. Domenech, of Kaufman,
Englett, Lynd, PLLC, Orlando, for
Appellant.

Kimberly N. Hopkins, of Shapiro, Fishman,
and Gaché. LLP, Tampa, for Appellee.
GRIFFIN, J.

Abdallah Boumarate and Jennifer Bratchell-Boumarate [“Appellants”] appeal a
summary final judgment entered by the trial court in favor of HSBC Bank, N.A. [“the
Bank”] to foreclose a residential mortgage and recover on a promissory note executed
in favor of Novelle Financial Services, Inc. in connection with the mortgage. The
complaint contained both a count for foreclosure and a second count to re-establish a
lost instrument (the note) pursuant to section 673.3091, Florida Statutes.

In order to be entitled to judgment, the Bank must prove its right to enforce the
note as of the date of the summary judgment hearing, including how it obtained the
Novelle Financial Services note and the circumstances of its loss.1 Beaumont v. Bank
of New York Mellon, 81 So. 3d 553, 554-55 (Fla. 5th DCA 2012). The Bank did file a
“lost instrument affidavit,” but it merely averred that it currently held the note, but could
not find it. The Bank does not dispute its burden of proof on this point; it merely argues
that by failing to raise this issue in its pleading, Appellants lost their right to complain of
the defect. However, this burden remained with the bank. Beaumont, 81 So. 3d 555;
Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So. 3d
773 (Fla. 4th DCA 2011).

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

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2 Responses to “Boumarate v. HSBC | Fla 5th DCA – (Lost Note Affidavit) It is the bank’s burden to prove its right to enforce the note at the time of summary judgment.”

  1. 206.496.5854 [Call: 206.496.5854]
    Former Bank of America employee Senator Mark Mullet gives the motion to “do pass” SHB 1435 to the Rules committee

    Senator Mark Mullet, the new member of the Financial Institutions, Housing & Insurance Committee, moved SHB 1435 to a do pass (to the Rules committee).

    Mark just happens to be a Bank of America alumni.

    “Mark was a Managing Director at Bank of America, serving as the Global Head of Foreign Currency Options Trading. This made him responsible for a business spread across three different continents.”

    http://en.wikipedia.org/wiki/Mark_Mullet

    Here is a video of the today’s Executive session passing along SHB 1435. Every member present gives a hearty “I” to pass along.

    http://www.tvw.org/index.php?option=com_tvwplayer&eventID=2013031129#start=3142&stop=3197

    KABOOM all three videos SENATOR GOODMAN STATING THE LENDERS DONT KNOW WHO OWNS THE LOANS AND THE TITLE ASSIC ATTORNEY STATING IF YOU EXPECT TO CLOSE ON A SALE OF A HOUSE WITH NOTES AND THE PARTIES OF INTEREST AND PROPER DOCS YOU WILL NEVER BE ABLE TO SELL YOUR HOUSE EVER, Obviously this bill effects all house/property sales not just the ones he claims but all sales of all houses including the stolen houses, and they are all stolen if the lenders dont know who owns the loans and have no authentic notes of proof to reconvey.

    RE: KABOOM SENATOR GOODMAN STATING THE LENDERS DONT KNOW WHO OWNS THE LOANS AND THE TITLE ASSIC ATTORNEY STATING IF YOU EXPECT TO CLOSE ON A SALE OF A HOUSE WITH NOTES AND THE PARTIES OF INTEREST AND PROPER DOCS YOU WILL NEVER BE ABLE TO SELL YOUR HOUSE FAST FORWARD TO BS SB BILL 1435!

    http://www.youtube.com/watch?feature=player_embedded&v=JMf_KwQ2Xlk#!
    Subject: KABOOM SENATOR GOODMAN STATING THE LENDERS DONT KNOW WHO OWNS THE LOANS AND THE TITLE ASSIC ATTORNEY STATING IF YOU EXPECT TO CLOSE ON A SALE OF A HOUSE WITH NOTES AND THE PARTIES OF INTEREST AND PROPER DOCS YOU WILL NEVER BE ABLE TO SELL YOUR HOUSE EVER, Obviously this bill effects all house/property sales not just the ones he claims but all sales of all houses including the stolen houses, and they are all stolen if the lenders dont know who owns the loans and have no authentic notes of proof to reconvey.

    CLICK ONTO THIS AND YOU WILL SEE SENATOR ROGER WASHINGTON SENATOR GOODMAN STATE ” THEY DON’T KNOW WHO THE LENDER WAS”? NOTICE THEY ARE CHUCKLING THAT THEIR ARE CONS TESTIFING TO THIS BS BILL. THEY TOLD US BY EMAIL NOT TO COME!!!! THE BANKERS AND TITLE COMPANIES ARE ALMOST JUMPING OUT OF THEIR SEATS TO SEE THIS BILL PASS. THIS IS GREAT FOR THEIR THEFT OF THE STOLEN HOUSE. SEND A LETTER TO WHO? AND IF THE LENDER DOES NOT DISPUTE IT [SOMETIMES THEY DON’T EVEN KNOW WHO THE LENDER WAS!!!!! AND “SOMETIMES THEY DON’T DISPUTE IT! “NO DISPUTE NO ONE KNOW WHO THE LENDER WAS!CANT FIND THEM DUE TO THE NOTES ARE SUPPOSEDLY IN THE SECURITIES POOLS. THIS WILL FIX THEIR MESS THIS WILL ENABLE THE THIEVES TO SELL THE STOLEN HOUSES AND STOLEN NOTES THAT THE BANKS ARE ALREADY PAID FOR WHEN THEY SUPPOSEDLY CASHED THEM GOT PAID AND PUT THEM INTO THE PSA’S BUT YOU AND I KNOW THEY NEVER GOT TRANSFERRED THEY GOT DESTROYED TO EVADE SECURITIES FRAUD. JUST LISTEN TO THIS BS. THIS IS THE FIRST MEETING ON THIS BILL WE WERE TOLD NOT TO SHOW UP TO.
    http://www.tvw.org/index.php?option=com_tvwplayer&eventID=2013021143#start=6475&stop=106
    Here is a link that begins with Stuart Halsan’s testimony.
    http://www.tvw.org/index.php?option=com_tvwplayer&eventID=2013031076#start=4699
    This is a video of a Washington state senate meeting in Olympia. WA, I and several others were told by Senator Goodman not to show due to the bill was going to be pulled due to it being a bad bill, they had this meeting without us, I believe on purpose. On the second video you will see the attorney for the title association admit there are no notes. He admits the problem lies in the securities pools. He admits if you expect to sell a house by reconveyance with an authentic note You will never be able sell your house. Pushing this BS bill is necessary to close and sale every home due to no, zero, nada, homes well be closed and sold without this BS SB bill 1435. A bill to enable the sale OF STOLEN HOMES. ABSOLUTE ADMISSION OF THE LENDERS DO NOT KNOW WHO OWNS THE LOANS AND ADMISSION THERE ARE NOT NOTE. NOT EVEN THE SENATORS WILL BE ABLE TO SELL THEIR HOMES EVER.

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