In short: Today the answer is generally no: a Florida lender that says it holds the note must file the original with the court before a foreclosure judgment is entered, and a lender that lost it must use the lost-note procedure. In Sanchez v. Bank of New York, a Miami-Dade homeowner representing himself argued the bank won with a note that changed between the complaint and the judgment and asked to vacate the judgment for fraud on the court. The Third District affirmed without a written opinion on December 26, 2012, and denied rehearing on February 1, 2013.
The Facts
The Bank of New York, as trustee, obtained a summary judgment of foreclosure against Ricardo Sanchez in Miami-Dade County. Sanchez moved to vacate the judgment, and later filed an amended motion. The trial court denied both, and he appealed on his own behalf (No. 3D12-259). The case was argued on December 11, 2012. The court had granted him leave to use demonstrative exhibits at argument.
The points below are what the parties argued, not findings by the court.
- Sanchez argued that the note attached to the complaint had no endorsement, while the version filed after the summary judgment hearing had one. He pointed to hole punches and a barcode that appeared in different places on the two versions and said they could not be the same document.
- He argued the bank misrepresented that it held the original note, which he called fraud on the court, and that his amended motion was timely because it raised the same grounds as his first motion.
- He also attacked the assignment of mortgage through an expert, and argued the fee affidavit and the original note were not filed in time for the summary judgment hearing.
- The bank argued its amended motion came more than two years after the judgment, so it was untimely, and that it raised a different ground (standing) than the first motion (subject matter jurisdiction and the assignment).
- The bank argued that a motion for relief from judgment is not a substitute for an appeal, that review was only for abuse of discretion, and that the assignment did not matter because standing turns on the right to enforce the note. Its counsel told the court the original note had been in the clerk’s file and later went missing.
The Decision
The Third District affirmed on December 26, 2012. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion. Sanchez moved for rehearing, and the court denied it on February 1, 2013.
A per curiam affirmance decides only that case. It does not tell us whether the court thought the amended motion was late, the fraud claim was not shown, or both. It is not a ruling that a bank may foreclose without the original note.
The Law
A note is enforced by a “person entitled to enforce” it under section 673.3011: the holder, a nonholder in possession with the rights of a holder, or a person who may enforce a lost, destroyed or stolen note under section 673.3091. That is why the original note matters. A bank that relies on a blank endorsement generally has to possess the note to enforce it.
Current law (2026): Sanchez’s case came before the Legislature added section 702.015 in 2013. For residential foreclosures, that section now requires a plaintiff that holds the original note to file a sworn certification of possession with the complaint, attach copies of the note and allonges, and file the original note and allonges with the court before any judgment. A plaintiff that cannot do so must attach a lost-note affidavit and give the borrower adequate protection before judgment. rule 1.115 of the Florida Rules of Civil Procedure imposes the same requirements and requires the complaint to be verified.
Relief after judgment runs through rule 1.540. A motion based on mistake, newly discovered evidence or fraud under rule 1.540(b)(1) through (3) must be filed within a reasonable time and not more than one year after the judgment. A motion claiming the judgment is void has no one-year limit. The rule also preserves a court’s power to set aside a judgment for fraud on the court.
Lessons
- Raise the original-note problem before judgment. Compare the note attached to the complaint with the one the bank files, and object at the hearing.
- Watch the one-year clock. A fraud motion under rule 1.540(b)(3) filed more than a year after the judgment faces a serious timeliness fight.
- An amended motion that raises a new theory may not relate back to the first one.
- A motion to vacate is not a second appeal. Errors in the judgment itself usually have to be raised by a timely appeal.
- A per curiam affirmance without an opinion settles that case only.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Can a Bank Foreclose Without Filing the Original Note?
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Foreclosure Trial: Unlisted Power of Attorney and Undated Endorsements (Cintron v. Aurora)
- How to Vacate a Default or Final Judgment in Florida: Rule 1.540 and Its Limits
- A Bombshell Michelle Sjolander/Countrywide/BofA Deposition
Frequently Asked Questions
Does the bank have to file the original note in a Florida foreclosure?
For residential foreclosures, yes, if the bank claims to hold it. section 702.015 and rule 1.115 require the plaintiff to file the original note and any allonges with the court before a judgment is entered. Those requirements were added after the Sanchez judgment.
Can a bank foreclose if it lost the original note?
It can try. It must attach a sworn lost-note affidavit to the complaint, prove it is entitled to enforce a lost note under section 673.3091, and the court must require adequate protection for the borrower before judgment.
How long do I have to vacate a foreclosure judgment for fraud?
A motion under rule 1.540(b)(3) for fraud must be filed within a reasonable time and no more than one year after the judgment. Sanchez’s amended motion came more than two years later, which the bank argued made it untimely. A void judgment, or fraud on the court, is treated differently, but those claims are hard to prove.
Does an assignment of mortgage give the bank standing to foreclose?
Not by itself. In Florida the mortgage follows the note, so standing usually turns on whether the plaintiff was entitled to enforce the note under section 673.3011. The bank in Sanchez argued exactly that when Sanchez attacked the assignment.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
