Fourth DCA Holds that for Ortiz Presumption to Apply the Note must be in the “Same Condition”
Yesterday, in Fredle v. The Bank of New York Mellon, 4D15-3283, the Fourth District Court of Appeal granted a motion for rehearing and clarification with some interesting tidbits important to fighting the presumption analysis pursuant to Ortiz.
Here, the note attached to the complaint was not in the same condition as the original note introduced at trial, as pointed out by the appellants in their reply brief. Although the differences may seem minor, Ortiz infers possession at the time of filing suit where the copy attached to the complaint and the original are the same, as the copy must have been made from the original note at the time that the complaint was filed, without evidence to the contrary. Where the copy differs from the original, the copy could have been made at a significantly earlier time and does not carry the same inference of possession at the filing of the complaint.
(Emphasis in original).
While the facts about the condition of the note attached to the complaint versus the note presented to the court aren’t contained within the opinion, this language can be interpreted very broadly. Any type of difference in the copy attached to the complaint could be sufficient to overcome an Ortiz presumption. The current holding indicates that a noteholder could rebut an Ortiz presumption if the note presented at the time of trial has any minuscule difference compared to the copy which was filed along with the complaint. The result of this holding is that a defendant may be able to successfully rebut a presumption that the noteholder was in possession of the note at the time that the lawsuit was filed if the defendant can show that there is any minor difference; such as, a small tear, a coffee stain, a stray marking, or even a noticeable crease. Prior to this decision many courts would only examine the note to see if there were any additional endorsements, but this ruling is much broader in scope. This is exactly how Ortiz should have been applied from the beginning, because drawing this type of inference is pretty tenuous to begin with.
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