### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

U.S. BANK NATIONAL ASSOCIATION, as Trustee on B ehalf of the Holders of CSAB Mortgage

- Backed Pass

- Through Certificates,

Series 2007

- 1, Appellant,

v.

ZACARIE BENOIT, MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS INCORPORATED AS NOMINEE FOR FIRST INTERSTATE

FINANCIAL CORP

. , and THACKER LIMITED PARTNERSHIP, Appellee s

.

No. 4D 14

- 4052

[May 4, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Kathleen D. Ireland

, Senior Judge; L.T. Case No. 09

- 1380 (11)

.

G. Bart Billbrough and Caroline Milewski of Billbrough & Marks, P.A., Coral Gables, for appellant.

Kendrick Almaguer, Peter Ticktin

, and Joshua Bleil of The Ticktin Law Group, P.A., Deerfield Beach, for appellee Zacarie Benoit

.

L EVINE
, J.

The issue presented is whether a court must enforce a settlement
agreement and enter consent final judgment of foreclosure when both parties mutually assent to the agreement but the plaintiff is subsequently unable to produce the original promissory note. We hold that since Florida law “highly favor [s] ” settlement, the trial court erred when it refused to enforce the parties ’ agreement.

U.S. Bank, N.A., as trustee, filed a foreclosure action against Zacarie Benoit, the appellee. The bank attached a copy of the mortgage as well as a copy of the promissory note, endorsed in blank, to the complaint

. Subsequently, the partie s entered into a Settlement Agreement and

Release of Claims

.2

In the settlement agreement , the parties s tipulated that appellee executed the promissory note and mortgage, that the loan was assigned to the trust, and that app ellee was in default. Appellee consented to entry of

f inal j udgment of f

oreclosure in favor of the bank

. Appellee further agreed

to release and discharge all defenses and causes of action, “ whether known or unknown, foreseen or unforeseen,” against the bank and trust, “notwithstanding the discovery o r existence of any addition al or different

facts or claims. ”

In the agreement, t he bank also warranted that it owned the right to enforce its claim against appellee and had not transferred this right. T he

bank also agreed to indemnify appellee should the bank have misrepresented this fact and transferred its right to enforce a claim against appellee

.

When the bank moved for consent final judgment, it was then unable to produce the original note. According to the b ank, it had lost the original note at some point after it had filed its complaint. The lower court denied

, without prejudice, the bank’s motion for entry of consent final judgment.

The court also ordered the bank not to file for consent final judgment

wi thout also producing the original note and mortgage.

The case went to trial. On the day of trial, the bank was unable to show

that it had possession of the original note. The lower court entered an order of involuntary dismissal. The bank now appeals.

The bank argu es that the lower court should have enforced the

settlement a greement notwithstanding its inability to produce the original

note. We agree. Because we find this issue is dispositive, we do not need

to reach the bank’s other argument

.

I n Florida, s ettlement agreements are “ highly favored ” “ and will be enforced when it is possible to do so.” Treasure Coast, Inc. v. Ludlum

Constr. Co. , 760 So. 2d 232, 234 (Fla. 4th DCA 2000)

. “[ P ] arties have broad

discretion in fashion ing the terms of a settlement agreement, ” Aboumahboub v. Honig , 182 So. 3d 682, 684 (Fla. 4th DCA 2015), and

courts must enforce a settlement agreement so long as the parties agree

on the “ essential terms and seriously understand and inten d to be bound by the terms

, ” Treasure Coast , 760 So. 2d at 234.

We recognize that “possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms.”

Deutsche Bank Nat’l Ass’n Trust Co. v. Clarke , 87 So

. 3d 58, 61 (Fla. 4th DCA 2012). Moreover, “a plaintiff seeking to foreclose on a defendant must3

produce the original note (or provide satisfactory explanation of the failure to produce) and surrender it to the court or court clerk before the issuance

of a final judgment in order to take it out of the stream of commerce.”

Deutsche Bank Nat’l Trust Co. v. Huber , 137 So. 3d 562, 564 (Fla. 4th DCA 2014).

Nevertheless, a judgment of foreclosure does not always require surrender of the original note. For e xample, where a plaintiff satisfies the requirements for the enforcement of a lost, destroyed, or stolen instrument, the plaintiff may foreclose on a property even where the plaintiff no longer has possession of the original note. See § 673.3091,

Fla. Stat. (2004). The danger that the original note might be negotiated to a bona fide purchaser for value is abrogated by the requirement that the one seeking to enforce a lost note must indemnify the defendant. Id. ; see also § 702.11, Fla. Stat. (2013).

H ere, the parties agreed to resolve litigation through a settlement agreement and expressed their intention to be bound by the settlement agreement’s terms. 1 The agreement was not specifically conditioned upon the bank’s p roduction of the original note. I n fact, appellee affirmatively waived any defenses “whether known or unknown, foreseen or

unforeseen.” Additionally, the parties’ agreement provided that the bank

woul d indemnify appellee had the bank previously negotiated the note

.

Under these particul ar circumstances, the lower court should have enforced the parties’ agreement due to the agreement’s terms and Florida ’s law “highly favor[ ing ]” settlement. See T reasure Coast , 760 So. 2d at 234.

W e therefore reverse with instruction to enforce the settlement a greement and for other proceedin gs consistent with this opinion

.

Reversed and remanded

.

S TEVENSON and G ERBER
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Appellee argues for the first time on appeal that the bank misrepresented that it possessed the original note so as to induce appellee’s acceptance of the settlement agreement. We do not address this argument because appellee did not properly raise it in the lower court.