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.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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.
Kimberly 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.
Stacknik's 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 terms allowing for an increase in
principal are those setting forth the possibility of negative
amortization; a possibility which would only occur through
Ms. Stacknik's choices regarding payment. That is, where
Ms. Stacknik's 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. Stacknik's 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. Bank's witness did not demonstrate
sufficient knowledge of the third-party vendor's mailing
practices to establish that the paragraph 22 notice was
mailed. However, Ms. Stacknik fails to recognize that
testimony regarding a company's 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 195, 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
company's 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. Nat'l Mortg. Ass'n, 230 So.3d
546, 549 (Fla. 2d DCA 2017); Edmonds v. U.S. Bank
Nat'l Ass'n, 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. Bank's witness, and their admissibility has not been
final judgment of foreclosure is affirmed.
ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.
Concomitant with her negative
amortization argument, Ms. Stacknik contends that U.S. Bank
is not entitled to enforce the note as a holder, as that term
is defined in section 671.201(21)(a), Florida Statutes
(2013). While our determination that the note at issue is a
negotiable instrument necessarily resolves this argument, it
is important to remember that contractual obligations to pay
money are enforceable independent of whether they are
negotiable instruments under the Uniform Commercial Code. And
in that respect, obligations which permit the assignment of
the debt are enforceable by the assignee. See Chuchian v.
Situs Invs., LLC, 219 So.3d 992, 993 (Fla. 5th DCA
2017). Moreover, while "an action at law on a note may
be pursued simultaneously with the equitable remedy of
foreclosure," there is nothing requiring them to be
simultaneously pursued; the legal remedy of enforcement of
the note and the equitable remedy of foreclosure may each be
sought independently from the other. Royal Palm Corp.
Ctr. Ass'n, Ltd. v. PNC Bank, NA, 89 So.3d 923, ...