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.
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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.