JOANNE LIUKKONEN v. BAYVIEW LOAN SERVICING LLC , 243 So. 3d 981 ( 2018 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    JOANNE LIUKKONEN,
    Appellant,
    v.
    BAYVIEW LOAN SERVICING, LLC,
    Appellee.
    No. 4D16-4193
    [March 28, 2018]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE 13-
    004110(11).
    Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant.
    Cynthia L. Comras, David Rosenberg and Jarrett Cooper of Robertson,
    Anschultz & Schneid, P.L., Boca Raton, for appellee.
    FORST, J.
    Appellant Joanne Liukkonen appeals a final judgment of foreclosure
    entered against her and her husband. She contends Appellee Bayview
    Loan Servicing, LLC, violated the best evidence rule when it introduced
    mere copies of the loan modifications without explanation. We disagree
    and affirm. We write to clarify our jurisprudence on this issue and affirm
    without comment all other issues raised by Appellant.
    Background
    At trial, Bayview introduced an original note, but only introduced copies
    of the loan modifications (which affected the interest rates) and offered no
    explanation as to why it did not produce the originals. Appellant offered
    no objection at the time, but objected during closing and in her motions to
    strike and for rehearing. The objections were overruled.
    Analysis
    We review evidentiary rulings for abuse of discretion. Holt v. Calchas,
    LLC, 
    155 So. 3d 499
    , 503 (Fla. 4th DCA 2015). As a preliminary matter,
    Appellant has waived her best evidence rule objection because she failed
    to make it contemporaneously with the introduction of the copies. See
    Johnston v. Hudlett, 
    32 So. 3d 700
    , 704 (Fla. 4th DCA 2010).
    We nevertheless address the merits on this issue to clarify our decision
    in Rattigan v. Central Mortgage Co., 
    199 So. 3d 966
     (Fla. 4th DCA 2016).
    There, a bank introduced an original note, but violated the best evidence
    rule by foreclosing under the terms of a modification without introducing
    the original or a copy into evidence. We held that “[w]ithout the agreement
    itself in evidence, testimony regarding the contents of the agreement is not
    permitted.” 
    Id.
     at 967 (citing J.H. v. State, 
    480 So. 2d 680
    , 682 (Fla. 1st
    DCA 1985)).       Therefore, there was no proper evidence to support
    foreclosure under the terms of the modified note.
    We noted in dicta:
    The Bank violated the best evidence rule by virtue of its failure
    to introduce the modification at trial (either the original or a
    duplicate with an explanation as to why the original note was
    unavailable, see Deutsche Bank Nat’l Tr. Co. v. Clarke, 
    87 So. 3d 58
    , 62 (Fla. 4th DCA 2012)).
    Rattigan, 199 So. 3d at 967 (citing J.H., 
    480 So. 2d at 682
    ). In J.H., the
    court simply held the Health and Rehabilitative Services’ failure to
    introduce an agreement it entered into with a mother—the nonfulfillment
    of which was the basis for its dependency petitions—violated the best
    evidence rule. 
    480 So. 2d at
    682 (citing § 90.952, Fla. Stat. (1983)).
    The foreclosing bank in Clarke introduced a copy of a promissory note
    into evidence. Clarke, 
    87 So. 3d at 59
    . We noted that “[a] duplicate
    is . . . admissible to the same extent as an original,” unless “[t]he
    document or writing is a negotiable instrument as defined in s. 673.1041.”
    
    Id. at 60
     (first and third alterations in original) (quoting § 90.953(1), Fla.
    Stat. (2010)). “A promissory note is a negotiable instrument,” thus
    requiring production of the original. Id. at 60-61. We explained the
    reasons for the exception: (1) the document itself is the source of the
    obligation, not just the terms; and (2) “surrender removes a note from the
    stream of commerce, preventing someone else from trying to enforce it
    against the defendant a second time.” Id. at 60-62. Therefore, a
    foreclosing party must produce and surrender the note or reestablish it to
    take it out of the stream of commerce or give another “satisfactory
    explanation” for its failure to produce the original. Id. at 61-62 (quoting
    State St. Bank & Tr. Co. v. Lord, 
    851 So. 2d 790
    , 791 (Fla. 4th DCA 2003)).
    2
    Earlier surrender of the note to the court file was “one such ‘satisfactory
    explanation’ for failing to produce the original at trial.” Id. at 62.
    A modification to a note, while “as much a part of the parties’ agreement
    [i.e., its terms] as the original note,” Rattigan, 199 So. 3d at 967, is not,
    itself, a negotiable instrument. See § 673.1041, Fla. Stat. (2016); see also
    § 673.1171, Fla. Stat. (2016). Like a mortgage, it “may thus be proved by
    using a properly authenticated duplicate.” Clarke, 
    87 So. 3d at 61
     (quoting
    Perry v. Fairbanks Capital Corp., 
    888 So. 2d 725
    , 727 (Fla. 5th DCA 2004)).
    No explanation as to why the original was unavailable is required.
    Therefore, the trial court correctly admitted copies of the modifications
    and accompanying testimony. Appellant did not timely challenge their
    authenticity or the fairness of using copies, § 90.953(2)-(3), Fla. Stat.
    (2016), thus waiving any such challenge.
    Conclusion
    Appellant failed to preserve her best evidence rule objection, and she
    misconstrues the holding of Rattigan. A copy of a modification is
    admissible to the same degree as an original, as it is not a negotiable
    instrument as defined in section 673.1041. § 90.953, Fla. Stat. (2016).
    Affirmed.
    LEVINE and CONNER, JJ., concur.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    3