DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

U.S. BANK NATIONAL ASSOCIATION, as Trustee on Behalf 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, 

Appellees.

No. 4D14-4052

[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.

LEVINE, 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 parties entered into a Settlement Agreement and 

Release of Claims.
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In the settlement agreement, the parties stipulated that appellee 

executed the promissory note and mortgage, that the loan was assigned to 

the trust, and that appellee was in default. Appellee consented to entry of 

final judgment of foreclosure 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 or existence of any additional or different 

facts or claims.” 

In the agreement, the bank also warranted that it owned the right to 

enforce its claim against appellee and had not transferred this right. The 

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 bank, 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 

without 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 argues that the lower court should have enforced the 

settlement agreement 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. 

In Florida, settlement 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 fashioning 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 intend 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 must 
3

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 example, 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).

Here, 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 production of the original note. In fact, appellee affirmatively 

waived any defenses “whether known or unknown, foreseen or 

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

would indemnify appellee had the bank previously negotiated the note. 

Under these particular 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 Treasure Coast, 760 So. 2d at 234. 

We therefore reverse with instruction to enforce the settlement agreement

and for other proceedings consistent with this opinion.

Reversed and remanded.

STEVENSON and GERBER, 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.