JOANNE LIUKKONEN v. BAYVIEW LOAN SERVICING LLC

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)).
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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.
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