August 6, 2018
Authored by: Johnathon Nicol
Editors’ Note: While we love complex restructuring and insolvency proceedings, a plain old suit on a note must be handled correctly as well (that did not happen in the case below). Jonathon Nicol in BCLP’s Kansas City office handles credit litigation around the country with expertise. Every aspect of commercial litigation must be studied and mastered – consider this a cautionary tale, and feel free to call Jonathon to take advantage of his mastery of these topics.
In Third Fed. Sav. & Loan Ass’n of Cleveland v. Koulouvaris, No. 2D17-773, 2018 WL 2271112 (Fla. 2d DCA 2018), Florida’s Second District Court of appeal analyzed, in the context of trial exhibit authentication, whether the note for a home equity line of credit (“HELOC”) was negotiable.
The Second District Court of Appeal considered whether it was proper for the Pasco County, Florida trial court to involuntarily dismiss Third Federal’s claim for foreclosure of a HELOC mortgage based on an objection that the HELOC note was nonnegotiable. At trial, Third Federal attempted to admit the note as self-authenticating, endorsed commercial paper. The borrowers countered that because the HELOC note was nonnegotiable, self-authentication did not apply. Because Third Federal made no further effort to authenticate, the trial court sustained the borrowers’ objection, and the borrowers’ subsequent motion to dismiss was granted. Third Federal appealed.
The Second District Court of Appeal sided with the borrowers. It noted that self-authenticating commercial paper is an exception to Florida’s requirement that a document be authenticated prior to its admission into evidence. That rule, however, does not apply where the paper is not an unconditional promise to pay a fixed amount of money. By its own terms, the subject HELOC note only established an obligation for the borrowers to repay whatever they might borrow, without any guarantee that they would ever borrow a single dollar. Thus, the note’s failure to require payment of a fixed amount meant the note was nonnegotiable and, as such, was not self-authenticating. Without proof of authentication, the note was inadmissible, and the trial court’s decision to grant the borrowers’ motion to dismiss was proper.
Although it is fairly obvious, the negotiability attributes of a HELOC are similar to a home equity conversion mortgage (“HECM”) and thus this case would likely apply to reverse mortgages too. It is expected that borrower’s counsel will cite the decision for this purpose. Accordingly, it is recommended that trial counsel in both HELOC and HECM matters be prepared to not rely on an endorsement of the note for authenticity, but rather should elicit live testimony supported by admissible documentary evidence that the note was assigned. A prepared witness should be able to authenticate a HELOC or HECM note.
In addition, servicers of litigated HELOC and HECM notes should take proactive measures to insure that their foreclosure counsel have removed all holder language from their filings and that the servicers are not signing affidavits in Florida referring to themselves as the holder.
The Third Federal decision thus provides some guidance to parties seeking to enforce HELOC notes, and likely also HECM notes, at trial.