THIRD FEDERAL SAVINGS & LOAN ASSOCIATION OF CLEVELAND, Appellant,
LEAH G. KOULOUVARIS a/k/a LEAH KOULOUVARIS and NICHOLAS KOULOUVARIS, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Kimberly Sharpe
L. Weinstein of the Van Ness Law Firm, PLC, Deerfield Beach,
Stopa of the Stopa Law Firm, Tampa, for Appellees.
LaROSE, CHIEF JUDGE.
Federal Savings & Loan Association of Cleveland appeals
the trial court's order involuntarily dismissing its
foreclosure case. We have jurisdiction. See Fla. R.
App. P. 9.030(b)(1)(A). Third Federal advances a variety of
alleged trial court errors. We are not persuaded and,
accordingly, affirm. We write for the limited purpose of
explaining why the trial court properly dismissed count two
of the complaint. In that count, Third Federal sought to
recover monies due on a home equity line of credit (HELOC),
secured by a second mortgage.
and Nicholas Koulouvaris borrowed money to buy a home in
Pasco County. The loan was evidenced by a note and secured by
a mortgage. About a week later, they obtained a HELOC,
secured by another note and a second mortgage. The HELOC note
did not contain a promise by the Koulouvarises to repay a
specified sum of money. Nor does our record reflect that
Third Federal disbursed any money to them at the closing on
the HELOC. Instead, the HELOC provided a credit limit of $40,
000. Nothing on the face of the HELOC note indicates how much
the Koulouvarises actually borrowed.
Federal sued the Koulouvarises after they defaulted on their
loans. The foreclosure action proceeded to a nonjury trial.
During its case-in-chief, Third Federal moved to admit the
HELOC note into evidence. The Koulouvarises raised an
authentication objection. They argued that the HELOC note was
nonnegotiable and, thus, not a self-authenticating
instrument. The trial court sustained the objection. Third
Federal made no further effort to authenticate the HELOC
note. The trial court also rejected Third Federal's
effort to admit the HELOC mortgage into evidence, explaining
that the second mortgage "has no legal significance
without a note."
Koulouvarises moved to involuntarily dismiss the case. As to
count two, they argued that Third Federal failed to introduce
a note, a mortgage, proof of a default, or any other
competent evidence to support foreclosure. Essentially, they
maintained that Third Federal failed to establish a prima
facie case on its HELOC cause of action. The trial court
agreed and dismissed the case.
law requires the authentication of a document prior to its
admission into evidence. See § 90.901, Fla.
Stat. (2012) ("Authentication or identification of
evidence is required as a condition precedent to its
admissibility."); Mills v. Baker, 664 So.2d
1054, 1057 (Fla. 2d DCA 1995); see, e.g.,
DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438,
439-40 (Fla. 2d DCA 2013) (holding that unauthenticated
default letters from lender could not be considered in
mortgage foreclosure summary judgment). Proffered evidence is
authenticated when its proponent introduces sufficient
evidence "to support a finding that the matter in
question is what its proponent claims." § 90.901;
Coday v. State, 946 So.2d 988, 1000 (Fla. 2006)
("While section 90.901 requires the authentication or
identification of a document prior to its admission into
evidence, the requirements of this section are satisfied by
evidence sufficient to support a finding that the document in
question is what its proponent claims.").
are a number of recognized exceptions to the authentication
requirement. One, as relevant here, relates to commercial
paper under the Uniform Commercial Code, codified in chapters
678 to 680 of the Florida Statutes. "Commercial papers
and signatures thereon and documents relating to them [are
self-authenticating], to the extent provided in the Uniform
Commercial Code." § 90.902(8); see, e.g.,
U.S. Bank Nat'l Ass'n for BAFC 2007-4 v.
Roseman, 214 So.3d 728, 733 (Fla 4th DCA 2017)
(reversing the trial court's denial of the admission of
the original note in part because the note was
self-authenticating); Hidden Ridge Condo. Homeowners
Ass'n v. Onewest Bank, N.A., 183 So.3d 1266, 1269
n.3 (Fla. 5th DCA 2016) (stating that because the endorsed
note was self-authenticating as a commercial paper, extrinsic
evidence of authenticity was not required as a condition
precedent to the note's admissibility); Riggs v.
Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA
2010) (holding that there was no issue of authentication
because the note was self-authenticating under section
Federal contends that the trial court should have admitted
the HELOC note into evidence. According to Third Federal, the
note was a self-authenticating negotiable instrument. We
cannot bicker with the proposition that "for over a
century . . . the Florida Supreme Court has held [promissory
notes secured by a mortgage] are negotiable instruments. And
every District Court of Appeal in Florida has affirmed this
principle." HSBC Bank USA, Nat'l Ass'n v.
Buset, 43 ...