This section contains the nature of the case and procedural background.

P brought an action to foreclose on a mortgage. P sought to establish the promissory note and mortgage under section 71.011, Florida Statutes. P alleged that Hartley executed the note and mortgage and that, after multiple assignments, the documents were assigned to P by EMC Mortgage Corporation. P alleged that the original documents were received but the record established that P 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 P. The court concluded that as P never had actual or constructive possession of the promissory note, it 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 P 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. D was granted summary judgment. P appealed.

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