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Ok, served with complaint for debt from original creditor(sort of, but technically it's still oc). This is for a student loan that isn't federally backed, however it was 'guaranteed' by a not for profit institute, therefore, can't be discharged in bankruptcy. (They were sure to include this in the counts as well) The law firm is a big firm. No offer of settlement was included with paperwork, only mention this because the last time served they made the 'settlement' offer with the paperwork. They included a copy of the original application, a copy of the truth in lending statement, and a copy of the 'name' change of the original creditor affidavit. I know I have to file some type of 'answer' to avoid a default judgment, but how am I supposed to answer this?? The 9 counts of their complaint are all straight forward and true. They have the exhibits to back them up. I know I can attempt to settle with them, but I have to answer to avoid the default judgment being entered, do I file a notice of appearance? They filed the complaint against both me and my ex so I have to file responses from both of us so as to keep them from 'defaulting' against him/me?? The suit is from Wells Fargo, and the law firm is Holland and Knight.

Suggestions? Cuz I am all ears and beginning to really want to crawl under the covers and pretend the world doesn't exist!! Big sigh. Thanks in advance

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I'm gonna jump in here...not because I have an answer, but because I have a further question. The reading I've done says that some student loans, particlarly those for vocational type schools, are actually made by "for-profit" companies and then sold to "not for proift" companies so that they will be non-dischargable. Was that the case here?

From what I read, they'll need to prove that's the case before they can claim its non-dischargable.

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I'm gonna jump in here...not because I have an answer, but because I have a further question. The reading I've done says that some student loans, particlarly those for vocational type schools, are actually made by "for-profit" companies and then sold to "not for proift" companies so that they will be non-dischargable. Was that the case here?

From what I read, they'll need to prove that's the case before they can claim its non-dischargable.

Yes, this is where they are playing the game to keep it from been discharged in bankruptcy. I have the original paperwork(not that I would tell them that!!) But included in their complaint it states

" The note was a nondischargeable education loan made under a program funded in whole or in part by a non-profit organization, EduCap, Inc"

Now, NOWHERE in the original paperwork that I have does it mention EduCap, Inc. But they were sure to throw in the part about it being funded in whole or in part by a non-profit organization. This loan was being promoted at the hospital I used to work at as a Consern Student Loan. You could get any amount of money (basically, based on income) and then the money could be used for expenses, computer, living expenses, blah blah blah, it wasn't solely to pay tuition or books. The majority of the money went to purchase tools as he was in an automotive mechanics training program thru a vocational school in the area.

I've always known that eventually this debt was going to be an issue since even if we filed for bankruptcy it wasn't going to go away without a serious battle and trying to prove hardship for 'both' of us wouldn't fly. For him, it might be a defense and the bankruptcy court might charge it off, but my financial earning possibilities exist and they would laugh me out of the courtroom!

I just want to avoid a judgment. But not sure how to go about working that angle, or if they will be willing to even consider working something out. One of us could claim head of household exemption to avoid garnishment(more than likely him) and the only asset he has is his truck. For me, they could try and garnish my wages, but if FL the house is exempt from a lein, but obviously the judgment would be around for at least 10 if not 20 years and haunt us for a long time!!!

Don't know if anyone has ever had to deal with this law firm or a situation like this. Thanks for asking the question though!

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I've been following the other thread, but since this is the original creditor doesn't that make a difference in regard to the whole debt validation and 'rules'??

The only other thing that is/could be an issue is that they have also included as Count II of the complaint a request for "Reestablishment of lost or destroyed note"

stating:

This is an action to reestablish lost or destroyed note. Wells Fargo adopts and realleges the averments of paragraphs 1-12 above {I didnt list these here, can if necessary}

The Note dated Sept X, 19XX made by Defendants and payable to Wells Fargo's predecessor in interest has been lost or destroyed and is not in the custody or control of Wells Fargo.

Wells Fargo's predecessor in interest had possession of the Note and was entitled to enforce it, but the Note has subsequently been lost or destroyed. Wells Fargo cannot reasonably obtain possession of the Note because it was lost or destroyed.

The copy attached to the complaint is a substantial copy of the lost or destroyed note. {This is the copy of the application for when we applied for the loan}

Wells Fargo and the Defendants are the only persons known to Wells Fargo who are interested for or against reestablishment. Wells Fargo has not endorsed, assigned, hypothecated or otherwised disposed of the Note nor has it been lawfully seized.

Wherefore Wells Fargo respectufylly requests that this Court enter a judgment reestablishing the Note.

Ohhhhh, and also, the initial complaint was filed in March of 2003. We were served July 2004. They issued summons three seperate times to attempt to serve us. Each of the summons were issued and supposed to be served within 120 days. After a year with no activity from what I read in Florida the lawsuits are supposed to be 'dissmissed' not with prejudice or anything, but to keep the docket tidy. I know they asked for an extention of time at least once after the initial failure to serve, but would that be of any significance in our defense??

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it's not uncommon for student loan notes to be lost

You want to deny this as "failing to sats a cause of action" against you. Deny it.

Of course, what they usually have is the paperwork showing they disbusred the money to your school, that you made payments on it, etc, indiicia that you got the benefit of the money.

However, you ae in a position to make them prove the debt. That is good. Just copy the answer and serve it. Discovery is much more telling than pleading.

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I have copied and pasted the law regarding the 'Enforcement of lost, destroyed, or stolen instrument' . When I file my answer and I have to list my defenses is there where I would cite the Florida Statutues and the fact that they weren't in possession of the note when it was 'lost and/or destroyed'? I also found several cases thru versuslaw.com that are related to lost notes and reference other cases. Would I include the references to the cases in my answer?? Or do I file the 'answer' and then file a motion to dismiss stating the relevant statues and cases that are on point?? I'm thinking about contacting an attorney to see if they would be willing to represent me/us in this matter. But of course, I'd love input from some of the seasoned veterans from the site. What do you think?? Thanks in advance

673.3081 Proof of signatures and status as holder in due course.--

(1) In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature. If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the plaintiff has the burden of establishing that the defendant is liable on the instrument as a represented person under s. 673.4021(1).

(2) If the validity of signatures is admitted or proved and there is compliance with subsection (1), a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under s. 673.3011, unless the defendant proves a defense or claim in recoupment. If a defense or claim in recoupment is proved, the right to payment of the plaintiff is subject to the defense or claim, except to the extent the plaintiff proves that the plaintiff has rights of a holder in due course which are not subject to the defense or claim.

History.--s. 2, ch. 92-82.

673.3091 Enforcement of lost, destroyed, or stolen instrument.--

(1) A person not in possession of an instrument is entitled to enforce the instrument if:

(a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred;

(B) The loss of possession was not the result of a transfer by the person or a lawful seizure; and

© The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(2) A person seeking enforcement of an instrument under subsection (1) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, s. 673.3081 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

History.--s. 2, ch. 92-82.

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this doesn't help you. It just means they have an extra hurdle to jump. But that' whay you deny the allegations and claim they cannot state a cause of action against you.

What is your defense? Did you get the loans, go to school, get a degree that you are enjoying the benefit of? That is what a judge will ask you. What is your answer then?

Not being mean. These are the questions you need to be ready to answer.

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No problem Recov. Attorney.

It wasn't 'really' a student loan. Yes, part of the money was used to pay for my ex's education, but the majority of the money went to pay for tools of the trade as he was in school to be a mechanic. I'm the cosigner on the loan so I didn't directly benefit from the loan. Obviously him having the ability to purchase his tools to obtain a job resulted in my getting a benefit out of the whole thing. I am not trying to 'avoid' paying, but trying to obtain a better position to be able to negotiate to avoid having a judgment entered.

Thanks for your response!

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are they going after him? If not, you should bring him in as a co-defendant and make him pay or be obligated to pay if you have to. That is another defense: he is a necessary party to the action and the plaintiff should not continue withot showing the court they can't sue him.

Now, collection attorneys hate to work. They want it easy, they want to yell, scream, cajole, intimidate. So, if you answer the complaint as set forth above, you will appear organized, thoughtful, ready to talk. The court will give you some respect for that, and the lawyer will have to pay attention.

There is no technicality ( save a SOL or capacity or fraud) that is going to win the day for you on this. You prepare to settle best by preparing for trial. Get the answer out, then send some discovery out, and they will want to talk settlement.

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Recovering Attorney or anyone else with an opinion, Doesn't this seem to be a case on point???

State Street Bank and Trust Company v. Lord, 851 So.2d 790 (Fla.App. Dist.4 07/23/2003)

[1] Florida Court of Appeals

[2] CASE No. 4D02-4051

[3] 851 So.2d 790, 2003.FL.0003451 <http://www.versuslaw.com>, 28 Fla. L. Weekly D1694

[4] July 23, 2003

[5] STATE STREET BANK AND TRUST COMPANY, TRUSTEE FOR HOLDERS OF BEAR STEARNS MORTGAGE SECURITIES INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1993-12. APPELLANT,

v.

HARTLEY LORD, BOCA GROVE PLANTATION PROPERTY OWNERS ASSOCIATION, INC., AND BOCA GROVE GOLF AND TENNIS CLUB, INC. APPELLEES.

[6] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward Fine and John Wessel, Judges; L.T. Case No.CL 99- 006652 AW.

[7] Forrest G. McSurdy of Law Offices of David J. Stern, P.A., Plantation, for appellant.

[8] Harold B. Haimowitz, Boca Raton, for Appellee-Hartley Lord.

[9] The opinion of the court was delivered by: Stone, J.

[10] The issue on appeal is whether a mortgagee by assignment, State Street Bank, may pursue a mortgage foreclosure in the absence of proof that either the mortgagee, or its assignor, ever had possession of the missing promissory note. A summary judgment was entered in favor of the mortgagor, Hartley Lord. We affirm.

[11] State Street sought to establish the promissory note and mortgage under section 71.011, Florida Statutes. State Street alleged that Hartley executed the note and mortgage and that, after multiple assignments, the documents were assigned to State Street by EMC Mortgage Corporation. Although State Street alleged in its pleading that the original documents were received by it, the record established that State Street never had possession of the original note and, further, that its assignor, EMC, never had possession of the note and, thus, was not able to transfer the original note to State Street.

[12] The trial court correctly concluded that as State Street never had actual or constructive possession of the promissory note, State Street could not, as a matter of law, maintain a cause of action to enforce the note or foreclose the mortgage. The right to enforce the lost instrument was not properly assigned where neither State Street nor its predecessor in interest possessed the note and did not otherwise satisfy the requirements of section 673.3091, Florida Statutes, at the time of the assignment. See Slizyk v. Smilack, 825 So. 2d 428, 430 (Fla. 4th DCA 2002).

[13] To maintain a mortgage foreclosure, the plaintiff must either present the original promissory note or give a satisfactory explanation for its failure to do so. § 90.953(1), Fla. Stat. (2002); W.H. Downing v. First Nat'l Bank of Lake City, 81 So. 2d 486 (Fla. 1955); Nat'l Loan Investors, L.P. v. Joymar Assocs., 767 So. 2d 549, 551 (Fla. 3d DCA 2000). A limited exception applies for lost, destroyed, or stolen instruments, where it is shown that "the person was in possession of the instrument and entitled to enforce it when loss of possession occurred." § 673.3091, Fla. Stat. (2002).

[14] Section 673.3091 provides, in part:

[15] (1) A person not in possession of an instrument is entitled to enforce the instrument if:

[16] (a) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred;

[17] (B) The loss of possession was not the result of a transfer by the person or a lawful seizure; and

[18] © The person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

[19] Here, it is unrefuted that State Street was unable to meet the requirement of section 673.3091. The undisputed facts show that the note was lost before the assignment to State Street was made. This court has previously refused to allow a mortgage foreclosure under similar circumstances. In Mason v. Rubin, 727 So. 2d 283 (Fla. 4th DCA 1999), the appellant brought a foreclosure action on a second mortgage, the trial court denied the foreclosure, and this court affirmed on the basis that the appellant had failed to establish the lost note under section 673.3091. Likewise, here, where State Street failed to comply with section 673.3091, the trial court correctly entered summary judgment denying its foreclosure claim. *fn1

[20] State Street cannot succeed under an assignment theory. We recognize that this court, and the Third District, have held that the right of enforcement of a lost note can be assigned. See Slizyk, 825 So. 2d at 430; Deakter v. Menendez, 830 So. 2d 124 (Fla. 3d DCA 2002); Nat'l Loan, 767 So. 2d at 551. Here, however, in contrast to National Loan, Slizyk, and Deakter, there is no evidence as to who possessed the note when it was lost.

[21] In Slizyk, we held that the assignee of a note and mortgage was entitled to foreclose despite his inability to produce the original documents. This court concluded that because the assignor was in possession of the notes, he had the right to enforce them. When the notes were assigned to the appellee, the right to enforce the instruments was assigned to him as well. Id. at 430. In contrast, here, the undisputed evidence was that EMC, the assignor, never had possession of the notes and, thus, could not enforce the note under section 673.3091 governing lost notes. Because EMC could not enforce the lost note under section 673.3091, it had no power of enforcement which it could assign to State Street. Were we to allow State Street to enforce the note because some unidentified person further back in the chain may possess the note, it would render the 673.3091 rule meaningless. We do not, and need not, reach any question as to whether Slizyk and National Loan may be applied where there is proof of an earlier assignor's possession further removed than the most immediate assignor.

[22] We recognize that applying the statute as we do will result in a windfall to the mortgagor and a likely injustice to the mortgagee, unless it is able to obtain new evidence. In Dennis Joslin Company v. Robinson Broadcasting Corp., 977 F. Supp. 491 (D.D.C. 1997), the district court rejected the right to assign the enforcement of a lost note. Apparently, in response to that opinion, the Uniform Commercial Code was amended to delete the requirement that the transferee be in possession at the time the instrument was lost and now provides that the person seeking to enforce the instrument either was entitled to enforce the instrument when loss of possession occurred, or acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred. See U.C.C. § 3-309(a)(1) (2002). Florida, however, has not similarly amended its code and still requires possession either by the assignor at the time of loss or by the person seeking to enforce the note. Any remedy must, therefore, be left to the legislature.

[23] GUNTHER and STEVENSON, JJ., concur.

--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[24] *fn1 We recognize that in O'Donovan v. Citibank, F.S.B., 710 So. 2d 654 (Fla. 3d DCA 1998), the court affirmed a summary judgment allowing foreclosure but reversed on the re-establishment claim where there was a question of fact as to whether the plaintiff could re-establish the terms of the promissory note under section 71.011(5). Although it appears that O'Donovan permits foreclosure even where the promissory note is not re-established, the Third District applied section 71.011 governing enforcement of lost papers, records, or files, and not section 673.3091. This court, however, has concluded that lost promissory notes are negotiable instruments and are actually governed by section 673.3091. See Slizyk, 825 So. 2d 428; Mason, 727 So. 2d 283.

20030723 20030723

© 1992-2003 VersusLaw Inc.

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Seems to me that without them actually having possession of the note at the time it was lost that they are not able to reestablish the note.

Anyone?? Thanks in advance

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