Claudine M. STACKNIK, Appellant,
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, MASTR ADJUSTABLE RATE MORTGAGES TRUST 2007-3 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-3; Wesley R. Stacknik; and Suntrust Bank, Appellees.
from the Circuit Court for Pinellas County; Keith Meyer,
M. Krukar and Dineen Pashoukos Wasylik of DPW Legal, Tampa
(substituted as counsel of record), for Appellant.
S. Mello and Vitaliy Kats of Greenberg Traurig, P.A., Tampa,
for Appellee U.S. Bank National Association.
appearance for remaining Appellees.
M. Stacknik challenges the final judgment of foreclosure
entered in favor of U.S. Bank National Association, as
Trustee for MASTR Adjustable Rate Mortgages Trust 2007-3
Mortgage Pass-Through Certificates, Series 2007-3. We affirm
the final judgment in all respects and write only to express
agreement with Hanna v. PennyMac Holdings, LLC, 270
So.3d 403 (Fla. 4th DCA 2019), and to reiterate that a
mailing log is sufficient additional evidence to establish
the mailing of a paragraph 22 notice.
Stacknik asks this court to determine that a note containing
negative amortization provisions is not a negotiable
instrument subject to Article 3 of the Uniform Commercial
Code, chapter 673, Florida Statutes (2013). Ms. Stackniks
adjustable rate note provides that the principal amount
borrowed was $880,000 and that the principal amount might
increase as provided under the terms of the note but would
never exceed 110% of the amount originally borrowed. The
allowing for an increase in principal are those setting forth
the possibility of negative amortization; a possibility which
would only occur through Ms. Stackniks choices regarding
payment. That is, where Ms. Stackniks monthly payments were
insufficient to satisfy the accruing interest, the balance of
unpaid accrued interest was added to the principal balance.
Ms. Stacknik argues that the negative amortization provisions
of her note remove it from the definition of a negotiable
instrument because the amount promised to be paid is not
"fixed." See § 673.1041(1) (defining
"negotiable instrument" in part as "an
unconditional promise or order to pay a fixed amount of
money, with or without interest or other charges described in
the promise or order"). Ms. Stackniks note is a promise
to pay $880,000 in principal plus applicable "interest
or other charges described," including amounts added to
the principal in accordance with the negative amortization
provisions of the note. Like the Fourth District in
Hanna, we reject the contention that the negative
amortization possibility, as expressed by the statement that
the principal repaid might exceed the amount originally
borrowed, renders the note nonnegotiable. See
Hanna, 270 So.3d at 405-06.
Stacknik also asks this court to determine that the evidence
presented by U.S. Bank was insufficient to establish its
compliance with paragraph 22 of the mortgage. Ms. Stacknik
argues that U.S. Banks witness did not demonstrate
sufficient knowledge of the third-party vendors mailing
practices to establish that the paragraph 22 notice was
mailed. However, Ms. Stacknik fails to recognize that
testimony regarding a companys routine business practices is
but one way to prove mailing. In addition to the default
notice, to prove mailing a party must produce "evidence
such as proof of regular business practices, an
affidavit swearing that the letter was mailed, or a
return receipt." Allen v. Wilmington Tr., N.A.,
216 So.3d 685, 688 (Fla. 2d DCA 2017) (emphasis added)
(citing Burt v. Hudson & Keyse, LLC, 138 So.3d 1193,
1195 (Fla. 5th DCA 2014)); cf. Rivera v. Bank of
N.Y. Mellon, 276 So.3d 979, 982 (Fla. 2d DCA 2019)
("To use routine business practice to prove mailing,
the witness must have personal knowledge of the companys
general practice in mailing letters. " (quoting
Allen, 216 So.3d at 688)). A mailing log has been
expressly recognized by this court as adequate proof of
mailing. See Allen, 216 So.3d at 688;
see also Kamin v. Fed. Natl Mortg. Assn,
230 So.3d 546, 549 (Fla. 2d DCA 2017); Edmonds v. U.S.
Bank Natl Assn, 215 So.3d 628, 630 (Fla. 2d DCA 2017).
Here, in addition to the default notice,
the mailing log and customer service notes indicating that
the default notice had been mailed were introduced into
evidence through U.S. Banks witness, and their ...