U.S. BANK NATIONAL ASSOC., ETC v. JEAN KACHIK , 2017 Fla. App. LEXIS 9642 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
U.S. BANK NATIONAL ASSOCIATION, As Trustee for HOME EQUITY
ASSET TRUST 2004-6 HOME EQUITY PASS-THROUGH
CERTIFICATES, SERIES 2004-6,
Appellant,
v.
JEAN KACHIK; Unknown Spouse of Jean Kachik; BANK OF AMERICA,
N.A.; BANK OF AMERICA Successor By Merger To BARNETT BANK OF
BROWARD COUNTY, N.A.; UNITED STATES OF AMERICA; Any and All
Unknown Parties Claiming By, Through, Under and Against The Herein
Named Individual Defendant(s) Who Are Not Known To Be Dead or Alive,
Whether Said Unknown Parties May Claim An Interest As Spouses,
Heirs, Devisees, Grantees, or Other Claimants; Unknown Tenant #1;
Unknown Tenant #2; Unknown Tenant #3; and Unknown Tenant #4, The
Names Being Fictitious To Account For Parties In Possession,
Appellee.
No. 4D16-1776
[July 5, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kathleen Ireland, Senior Judge; L.T. Case No. 13-
011979 CACE (11).
Dean A. Morande and Michael K. Winston of Carlton Fields, P.A.,
West Palm Beach, for appellant.
Jonathan H. Kline of Jonathan Kline, P.A., Weston, for appellee.
CIKLIN, J.
U.S. Bank National Association, as Trustee for Home Equity Asset
Trust 2004-6 Home Equity Pass Through Certificates, Series 2004-6 (“the
bank”), the plaintiff in the foreclosure proceedings below, appeals a final
judgment in favor of Jean Kachik (“the homeowner”). Because the bank
failed to file the original allonge to the subject note, we affirm.
A copy of the note on which the action was brought and a copy of a
paper entitled “Endorsement and Assignment of Note” were attached to
the bank’s single-count complaint for foreclosure. The endorsement and
assignment stated in pertinent part, “I hereby transfer, endorse and
assign to ____________ the within Note and Deed of Trust securing the
same, so far as the same pertains to said Note, without recourse.” At
trial, the bank moved into evidence the original note but only a copy of
the endorsement and assignment. After entertaining memoranda on the
effect of the endorsement and assignment, the trial court entered
judgment in favor of the homeowner.
On appeal, the bank argues that the endorsement and assignment
was merely an assignment for which the original document was not
required. The homeowner argues the subject document was an allonge
and, as such, the bank was required to file the original. We agree with
the homeowner.
“A promissory note is a negotiable instrument.” Deutsche Bank Nat’l
Trust Co. v. Clarke, 87 So. 3d 58, 60-61 (Fla. 4th DCA 2012). Where a
document is a negotiable instrument, the best evidence rule, as codified,
requires the production of the original. § 90.953(1), Fla. Stat. (2016) (“A
duplicate is admissible to the same extent as an original, unless . . . [t]he
document or writing is a negotiable instrument . . . .”). “Therefore, a
party who seeks to foreclose on a mortgage must produce the original
note.” Clarke, 87 So. 3d at 61.
This court has explained the concept of an allonge as an addition to a
negotiable instrument:
“An allonge is a piece of paper annexed to a negotiable
instrument or promissory note, on which to write
endorsements for which there is no room on the instrument
itself. Such must be so firmly affixed thereto as to become a
part thereof.” See Booker v. Sarasota, Inc., 707 So. 2d 886,
887 n.1 (Fla. 1st DCA 1998). Although Florida’s Uniform
Commercial Code does not specifically mention an allonge,
the Code provides that “[f]or the purpose of determining
whether a signature is made on an instrument, a paper
affixed to the instrument is a part of the instrument.” §
673.2041(1), Fla. Stat.
Isaac v. Deutsche Bank Nat’l Trust Co., 74 So. 3d 495, 496 n.1 (Fla. 4th
DCA 2011) (alteration in original). Isaac also describes the effect of an
allonge that does not identify a specific payee:
A promise or order is “payable to bearer” if it: “(a) [s]tates
2
that it is payable to bearer . . . ; (b) [d]oes not state a payee;
or (c) [s]tates that it is payable to or to the order of cash or
otherwise indicates that it is not payable to an identified
person.” § 673.1091(1), Fla. Stat. “If an instrument is
payable to bearer, it may be negotiated by transfer of
possession alone.” § 673.2011(2), Fla. Stat.
Id. at 496 (alterations in original).
Since Isaac dictates that an allonge is part of the note, and an original
note is required, it follows that an original allonge is required. Partially
relying on Isaac, the Second District reached this conclusion in a similar
case:
These documents are insufficient to show that U.S. Bank
had standing to foreclose. Though the copy of the note and
the allonge attached to the complaint indicate that the note
was transferred to U.S. Bank, U.S. Bank never filed the
original allonge. “In order to prevail in a suit on a note and
mortgage, the original note and mortgage must be
introduced into evidence or a satisfactory reason must be
given for failure to do so.” Fair v. Kaufman, 647 So. 2d 167,
168 (Fla. 2d DCA 1994). Because an allonge is essentially
part of the note, see Isaac v. Deutsche Bank Nat’l Trust Co.,
74 So. 3d 495, 496 n.1 (Fla. 4th DCA 2011), it was necessary
for U.S. Bank to file the original allonge along with the
original note.
Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So. 3d
1044, 1045-46 (Fla. 2d DCA 2016).
Turning to the document at hand, the endorsement and assignment
states “I hereby transfer, endorse and assign to ____________ the within
Note and Deed of Trust securing the same, so far as the same pertains to
said Note, without recourse.” The paper’s reference to “the within Note”
contemplates physical attachment to the note, indicating that the paper
is effectively an allonge. Further, because the paper does not specify a
payee, it is payable to bearer, and was thus negotiable by transfer alone,
rendering it a negotiable instrument for which the original document was
required.
Because the bank failed to produce the original allonge and did not
plead a lost instrument count, we affirm the trial court’s judgment in
favor of the homeowner.
3
Affirmed.
TAYLOR and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4