10-2127 MOSHE MAZINE and JAACOV E. BOUSKILA, v. M & I BANK

State: Florida

Court: Florida First District Court

Docket No: 10-2127

Case Date: 07/22/2011

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MOSHE MAZINE and JAACOV E. BOUSKILA, Appellants, CASE NO. 1D10-2127 v. M & I BANK, Appellee. _____________________________/ Opinion filed July 22, 2011. An appeal from the Circuit Court for Levy County. Stanley H. Griffis, III, Judge. David H. Charlip of Charlip Law Group, LC, Aventura, for Appellants. Erin Berger, Florida Default Law Group, PL, Tampa, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

VAN NORTWICK, J. Moshe Mazine and Jaacov Bouskila appeal an amended final judgment of mortgage foreclosure in favor of M & I Bank, appellee. Because the documentary

evidence necessary to establish the amount owed under the note and mortgage was admitted without proper foundation and it is undisputed that M & I Bank was not the holder of the mortgage and note, we reverse and remand for further proceedings. The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action. Servedio v. U.S. Bank Nat. Ass'n, 46 So. 3d 1105 (Fla. 4th DCA 2010). Because a promissory note is a negotiable instrument and because a mortgage provides the security for the repayment of the note, the person having standing to foreclose a note secured by a mortgage may be either the holder of the note or a nonholder in possession of the note who has the rights of a holder. See

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