DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, IN TRUST FOR 

REGISTERED HOLDERS OF FIRST FRANKLIN MORTGAGE LOAN 

TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 

2007-FF1,

Appellant,

v.

GABINO RODRIGUEZ, MARIA RODRIGUEZ a/k/a MARIA T. 

RODRIGUEZ, DIANA ELIZABETH RODRIGUEZ a/k/a DIANA E. 

RODRIGUEZ, UNKNOWN TENANT 1, UNKNOWN TENANT II, DANIA 

BEACH HOMES HOMEOWNERS ASSOCIATION, INC., ENTERPRISES 

LEASING COMPANY d/b/a ENTERPRISE RENT A CAR, CARMEL 

FINANCIAL CORP, AND ANY UNKNOWN HEIRS, DEVISES, 

GRANTEES, CREDITORS, AND OTHER UNKNOWN PERSONS OR 

UNKNOWN SPOUSES CLAIMING BY, THROUGH AND UNDER ANY OF 

THE ABOVE-NAMED DEFENDANTS,

Appellees.

No. 4D17-3391

[ September 20, 2018 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Barry J. Stone, Senior Judge; L.T. Case No. 2009-CA011020.

Allison Morat of Pearson Bitman LLP, Maitland, for appellant.

Samuel D. Lopez of Samuel D. Lopez, P.A., Pembroke Pines, for appellee

Gabino Rodriguez.

ARTAU, EDWARD L., Associate Judge.

Appellant, U.S. Bank National Association (“U.S. Bank”), challenges the 

trial court’s order denying its motion requesting the return of the original 

promissory note and mortgage from the court file after the underlying 

foreclosure action was dismissed for lack of prosecution. We conclude that 

the trial court improperly interpreted an agreed order as requiring the 

original documents to remain in the court file in perpetuity. Accordingly, 

we reverse the trial court’s order and remand for proceedings consistent 
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with this opinion.

In February 2009, LaSalle Bank brought a foreclosure complaint 

against appellee, Gabino Rodriguez. In furtherance of its foreclosure 

complaint, LaSalle submitted the original note and mortgage to the court. 

After LaSalle’s suit was dismissed in May 2011 for lack of prosecution, 

LaSalle sought to retrieve the note and mortgage from the court. The trial 

court granted the motion but the borrower filed an emergency motion to 

set aside the order, arguing that LaSalle’s counsel misrepresented facts 

and failed to give notice to the borrower.

On May 1, 2015, the trial court entered an agreed order vacating the 

prior order releasing the documents to LaSalle. The agreed order required 

the original note and mortgage to remain in the court file. In the event 

that the documents had already been mailed to LaSalle, the order required 

LaSalle to return the documents to the clerk to be placed back in the court 

file in their original untampered condition. LaSalle filed another motion 

to return the original documents, but the court denied the motion.

In October 2016, U.S. Bank was substituted into the case as the party 

plaintiff. U.S. Bank subsequently sought to retrieve the original loan 

documents from the court. The borrower argued that the agreed order

vacating the prior order granting release of the documents to LaSalle was 

an agreement between the parties “that the note shall remain in the court 

file, period, and nothing else,” and thus, the court could not rescind the 

parties’ agreement. U.S. Bank countered that the agreed order was not an 

agreement to keep the original note and mortgage in the court file forever. 

The trial court agreed with the borrower and denied U.S. Bank’s motion.

On appeal, U.S. Bank argues that the agreed order on which the court 

relied does not qualify as a stipulation or contract for the original note and 

mortgage to remain in the court file in perpetuity, and that it is 

unreasonable to conclude that LaSalle contractually obligated itself to 

leave its valuable commercial paper with the court forever. The borrower 

maintains that U.S. Bank’s right to retrieve the note was contracted away 

by its predecessor in interest, LaSalle, via the agreed order. We agree with 

U.S. Bank’s argument and disagree with the borrower’s argument.

A trial court’s interpretation of a contract is reviewed de novo. Gossett 

& Gossett, P.A. v. Mervolion, 941 So. 2d 1207, 1210 (Fla. 4th DCA 2006). 

“In construing a contract, the intention of the parties is ascertained from 

the language used in the instrument . . . .” Id. (citing Rylander v. Sears 

Roebuck & Co., 302 So. 2d 478, 479 (Fla. 3d DCA 1974)).
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The parties do not dispute that U.S. Bank had a right to retrieve the 

original documents from the court, but disagree about whether that right 

was contracted away in the agreed order. We find that the only reasonable 

construction of the language used in the agreed order is that it set aside a 

prior order granting the release of the documents until further order of the 

court. Nowhere on the face of the agreed order does it convey that the 

parties had entered into an agreement to leave the documents with the 

court in perpetuity.

Notably, this case had been dismissed for lack of prosecution 

approximately four years prior to the agreed order. No final judgment of 

foreclosure was ever entered. The agreed order was an interlocutory order 

addressing an objection based on lack of notice over the post-dismissal 

retrieval of LaSalle’s original documents. Undoubtedly, the court had the 

inherent authority to revisit this type of interlocutory order at any time 

prior to final judgment. See Nationsbank, N.A. v. Ziner, 726 So. 2d 364, 

366 n.1 (Fla. 4th DCA 1999) (interlocutory orders are within the inherent 

power of the court to set aside or modify).

As this court has previously explained, 

[O]riginal mortgages and promissory notes . . . are not merely 

exhibits but instruments which must be surrendered prior to 

the issuance of a judgment. The judgment takes the place of 

the promissory note. Surrendering the note is essential so 

that it cannot thereafter be negotiated. The judgment cancels 

the note. The clerk cannot return these instruments to the 

parties. 

Johnston v. Hudlett, 32 So. 3d 700, 704 (Fla. 4th DCA 2010) (citation 

omitted) (emphasis included). Requiring the surrender of the note takes it 

out of “the stream of commerce, preventing someone else from trying to 

enforce it against the defendant a second time” after entry of judgment. 

Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So. 3d 58, 62 (Fla. 4th DCA 

2012).

Here, no judgment was ever entered cancelling the note and taking it 

out of the stream of commerce. And although the clerk cannot return 

these type of instruments once judgment is entered, there is no legal basis 

to prevent the clerk from returning an original note if it was not cancelled 

by entry of a judgment. Indeed, it should be returned to the stream of 

commerce if judgment is not entered in a foreclosure case, as it does not 

belong to the court and it remains negotiable and valuable to its holder. 

See Fla. R. Jud. Admin. 2.430(f)-(h) (recognizing “power of the court to 
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release exhibits or other parts of court records that are the property of the 

person or party initially placing the items in the court records,” and 

establishing procedures for return and disposal of original exhibits and 

other such records).

Moreover, Rule 2.430(c) sets a five-year retention schedule for civil 

proceedings in circuit court, after which the clerk may destroy or dispose 

of those court records. Fla. R. Jud. Admin. 2.430(c). In addition, Rule 

2.430(f)(2) allows the clerk to destroy or dispose of exhibits in a civil case 

after 90 days if the parties or attorneys of record do not retrieve them upon 

30 days’ notice. Fla. R. Jud. Admin. 2.430(f)(2). Under either rule, any 

party could “apply to the court for an order requiring the clerk to deliver 

to the applicant the court records” any time before their destruction or 

disposal, whether or not there had been a prior interlocutory court order 

or stipulation. Fla. R. Jud. Admin. 2.430(g).

Therefore, the agreed order did not bind the court or its clerk to a

perpetual obligation to maintain the original negotiable instruments in the 

court file after the foreclosure case was disposed of without entry of final 

judgment. Instead, the agreed order only required the court to hold the 

original documents until further order of the court could be entered 

consistent with due process and Florida Rule of Judicial Administration 

2.430.

Because we find that the trial court’s interpretation of the agreed order 

was in error and contrary to Rule 2.430, we reverse the order denying U.S. 

Bank’s motion to return the original documents, and remand to the trial 

court for proceedings consistent with this opinion.

Reversed and Remanded.

LEVINE and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.