U.S. BANK NATIONAL ASSOC., ETC v. JEAN KACHIK
222 So. 3d 592
| Fla. Dist. Ct. App. | 2017Background
- U.S. Bank, as trustee, sued to foreclose a mortgage, attaching a copy of the promissory note and a paper titled “Endorsement and Assignment of Note.”
- At trial the bank introduced the original note but only a copy of the endorsement/assignment paper; the homeowner contested admissibility and standing.
- The endorsement/assignment stated it “transfer, endorse and assign to __ the within Note and Deed of Trust,” did not name a payee, and was physically separate from the note (but referenced the “within Note”).
- The bank argued the paper was a simple assignment (original not required); the homeowner argued it was an allonge to the note (original required under the best-evidence rule for negotiable instruments).
- The trial court entered judgment for the homeowner; the bank appealed. The Fourth District affirmed because the bank failed to produce the original allonge and did not plead a lost-instrument count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the paper attached to the complaint is an allonge (part of the note) or merely an assignment | Paper was only an assignment; original allonge not required | Paper is an allonge referencing the “within Note,” payable to bearer and thus part of the negotiable instrument | The paper is an allonge (part of the note) because it contemplates attachment and does not name a payee |
| Whether an original of the allonge must be produced to foreclose | Original not required for an assignment | Original required because an allonge is part of a negotiable instrument and best-evidence rule applies | Original allonge required under the best-evidence rule for negotiable instruments |
| Whether a copy of the allonge suffices when the note’s original is produced | Copy of allonge is sufficient if note original is produced | Copy insufficient because negotiable instruments require originals under §90.953(1) and UCC principles | Copy insufficient; must produce original allonge or plead lost-instrument count |
| Whether the bank’s failure to plead a lost-instrument count precludes relief | Relief should be allowed despite no lost-instrument count | Without pleading lost instrument, bank cannot rely on copies of negotiable instrument components | Bank’s failure to plead a lost-instrument count precludes admission of copy; judgment for homeowner affirmed |
Key Cases Cited
- Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012) (promissory note is a negotiable instrument; original note required to foreclose)
- Isaac v. Deutsche Bank Nat’l Trust Co., 74 So. 3d 495 (Fla. 4th DCA 2011) (an allonge affixed to a note is part of the negotiable instrument; bearer-payable instruments may be negotiated by possession)
- Booker v. Sarasota, Inc., 707 So. 2d 886 (Fla. 1st DCA 1998) (definition and requirement that an allonge be firmly affixed to be part of the instrument)
- Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So. 3d 1044 (Fla. 2d DCA 2016) (copy of an allonge insufficient; original allonge must be filed with original note)
- Fair v. Kaufman, 647 So. 2d 167 (Fla. 2d DCA 1994) (to sue on a note and mortgage, the original note and mortgage must be introduced or a satisfactory explanation given)