Unless judgment entered in favor of plaintiff and note has not been cancelled, it should be returned upon request

The Second District Court of Appeals recently held that so long as judgment is not entered in favor of Plaintiff and the Note has not been cancelled, the Note should be returned. See Wilmington Savings Fund Society FSB v. Morroni, — So. 3d —, 2021 WL 2171756 (Fla. 2d DCA May 28, 2021).

In Morroni, Wilmington was unable to prove standing at non-jury trial. Morroni provided expert testimony at trial who opined that the signature on the note offered into evidence was a photocopy. Despite the expert testimony, the circuit court originally ruled in favor of Wilmington and granted a judgment of foreclosure. Morroni appealed, and the appellate court found that the trial court had no basis to rule in favor of Wilmington and reject the expert testimony. The case was remanded for entry of judgment in favor of Morroni.

Wilmington subsequently petitioned the trial court to release the loan documents. The court denied Wilmington’s Motion to Release Originals, believing the prior ruling by the appellate court included a factual determination that the Note was not an original. The appellate court disagreed as to that interpretation. In addition, the court found other recent cases persuasive and ruled Wilmington was entitled to the release of the loan documents in the absence of a final judgment cancelling the note. See Id. citing MTGLQ Investors, L.P., v. Merrill, 312 So. 3d 986, 990-91 (Fla. 1st DCA 2021); Santiago v. U.S. Bank Nat’l Assoc. as Tr. For Banc of Am. Funding Corp., 257 So. 3d 1145, 1147 (Fla. 5th DCA 2018); U.S. Bank Nat’l Assoc. v. Rodriguez, 256 So. 3d 882, 884 (Fla. 4th DCA 2018); and Kajaine Ests., LLC, v. U.S. Bank Nat’l Assoc., 198 So. 3d 1010, 1011 (Fla. 5th DCA 2016).