FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Kimberly C.
Rosenberg and Robert R. Edwards of Robertson Anschutz &
Schneid, P.L., Boca Raton for Appellant.
Horowitz of Sarasota for Appellee.
Maxim I LLC (ALS Maxim) appeals a final order dismissing its
foreclosure action against Alexander Katsenko after the trial
court granted Katsenko's motion for summary judgment.
Because Katsenko is not entitled to summary judgment as a
matter of law, we reverse and remand for further proceedings.
BankUnited, FSB, filed this foreclosure proceeding in 2009
and alleged that it owned and held the promissory note. On
July 30, 2010, the Plaintiff filed a notice of filing the
original note and mortgage. Since then, substitutions of the
Plaintiff have been made, and ALS Maxim was substituted as
the Plaintiff by order rendered April 16, 2015.
7, 2015, Katsenko filed a motion for summary judgment on the
basis that the purported original note filed on July 30,
2010, was in fact a copy and not the original. Affidavits
filed in support reflect that Katsenko signed the note in
blue ink and that the filed note shows black ink. Katsenko
asserted that "the Plaintiff's predecessor in
interest's claim that the original note is in the Court
file is false." Katsenko asserted that ALS Maxim must
tender the original note to the trial court or seek to
reestablish the lost note. Katsenko claimed that he was
entitled to "judgment in his favor as Plaintiff does not
possess the original promissory note and lacks standing to
most, the summary judgment evidence showed that the purported
original note filed in 2010 was a copy rather than the
original. And ALS Maxim's counsel advised the court that
if the note was a copy it should be able to amend to add a
count to reestablish a lost note. However, the trial court
granted summary judgment in favor of Katsenko. In its motion
for rehearing ALS Maxim argued that if the filed note was a
copy, ALS Maxim was not required to provide the original note
until trial and that it might find the original before trial
or reestablish the lost note. After the trial court denied
the motion for rehearing, ALS Maxim timely filed its notice
employ a de novo standard on our review of a trial court
order granting summary judgment. Olivera v. Bank of Am.,
N.A., 141 So.3d 770, 773 (Fla. 2d DCA 2014). Summary
judgment is appropriate "only if there is no genuine
issue of material fact and if the moving party is entitled to
judgment as a matter of law." Reed v. Schutz Litig.
LLC, 117 So.3d 486, 488 (Fla. 2d DCA 2013) (quoting
MarElia v. Yanchuck, Berman, Wadley & Zervos,
P.A., 966 So.2d 30, 33 (Fla. 2d DCA 2007)). The movant
"has the burden to establish irrefutably that
the nonmoving party cannot prevail were a trial to
be held." Land Dev. Servs., Inc. v. Gulf View
Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011).
foreclosure action the promissory note must be removed from
the stream of commerce because the note is a negotiable
instrument. Heller v. Bank of Am., NA, 209 So.3d
641, 644, (Fla. 2d DCA 2017); Perry v. Fairbanks Capital
Corp., 888 So.2d 725, 727 (Fla. 5th DCA 2004). A
plaintiff must surrender the original promissory note to the
court or court clerk or provide a satisfactory reason for the
failure to do so before the trial court can issue a final
judgment. See Colson v. State Farm Bank, F.S.B., 183
So.3d 1038, 1039 n.1 (Fla. 2d DCA 2015); Deutsche Bank
Nat'l Trust Co. v. Huber, 137 So.3d 562, 564 (Fla.
4th DCA 2014).
defendant seeks summary judgment, as in the present case,
"the court is not called upon to determine whether the
plaintiff can actually prove its cause of action."
Land Dev. Servs., 75 So.3d at 869. Rather, the
defendant must establish a negative, that the plaintiff
"could never prove its case-not that it had
not already done so." Id. In Land
Development, this court determined that the
defendant's "bare assertion that the original note
was not 'in evidence' at the time of the hearing was
legally insufficient to meet its burden to prove that Land
Development could not prevail were a trial to be
held." Id. Therefore, this court concluded that
the trial court erred in granting summary judgment in the
defendant's favor based on the original note's
absence from the court file. Id.
Katsenko established at the summary judgment hearing that a
copy of the note, rather than the original, had been filed,
he failed to establish that he was entitled to judgment as a
matter of law because he did not prove that ALS Maxim could
not prevail at trial. See id. In other words,
Katsenko failed to prove that ALS Maxim would be unable to
produce the original note for trial. Therefore, ...