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9/3/2010 FindACase™ | Mason v.

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Mason v. Rubin

Florida Court of Appeals

Docket Number available at www.versuslaw.com


Citation Number available at www.versuslaw.com

February 10, 1999

CHARLES MASON, APPELLANT/ CROSS-APPELLEE,


v.
GUY B. RUBIN AND STEPHANIE RUBIN, HIS WIFE, APPELLEES/ CROSS-APPELLANTS.

Tim B. Wright and William R. Ponsoldt, Jr. of Warner, Fox, Seeley, Dungey & Sweet, L.l.p., Stuart, for appellant/cross-appellee..
Stuart M. Address of Rubin & Rubin, Stuart, for appellees/cross-appellants.

The opinion of the court was delivered by: Klein, J.

Appeal and cross-appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; Cynthia G. Angelos, Judge; L.T.
Case No. 96-64 CA.

This appeal is from a judgment denying foreclosure of a $10,000 second mortgage. The lenders, who had sold the borrowers their
home, separated after the closing, and requested that the borrowers divide the $66 monthly payment equally between the lenders.
The borrowers made the $33 payments timely to the wife, but testified that they had been waiting for the husband to inform them
as to where he was residing, so they could mail him the payments, and he had never done so. After about one year, the husband
had his lawyer contact the borrowers, and the lawyer insisted on being paid $500 in attorney's fees for collecting the payments.
The borrowers' refusal to pay those attorney's fees apparently resulted in the 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 re-establish 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. § 673.1041(1), Fla. Stat. (1993). Thompson v. First Union National Bank, 643 So 2d 1179 (Fla. 5th DCA
1994). Establishing a lost negotiable instrument is governed by a different statute, section 673.3091, Florida Statutes (1993). The
latter statute contains more stringent requirements than the former, and the trial court correctly concluded that the husband did not
satisfy section 673.3091. The trial court did allow the husband to proceed with his claim based on breach of an oral agreement. We
affirm the trial court's finding that the borrowers were not in default of that agreement. We find the other issues raised by the
husband to be without merit.

Affirmed.

DELL, and GROSS, JJ., concur.

NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.

19990210

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