GEORGE DEMAKIS
v.
SUNTRUST BANK
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The appellate court reversed a foreclosure judgment, holding that a home equity line of credit (HELOC) must be authenticated to be admissible as evidence, especially when used as the basis for a summary judgment. The court distinguished HELOCs from promissory notes, which are self-authenticating negotiable instruments.
No, the unauthenticated HELOC was not sufficient evidence to support the summary judgment. Because a HELOC is not a negotiable instrument and requires authentication, its admission into evidence without proper proof would be improper, rendering it an insufficient basis for summary judgment.
[1] A home equity line of credit is not a self-authenticating negotiable instrument and must be authenticated with evidentiary proof before it may be admitted into evidence i…
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Join FLexlaw to unlock all legal intelligence“Nevertheless, we reverse because SunTrust sought to foreclose on a home equity line of credit (HELOC) that was not authenticated.”
Establishes the primary reason for reversal.
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Join FLexlaw to unlock all legal intelligenceGeorge Demakis challenged a foreclosure judgment granted via summary judgment to SunTrust Bank. SunTrust filed a copy of the HELOC, but Demakis argued…
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- 2 - NORTHCUTT, Judge. George Demakis challenges a final judgment of foreclosure entered after the circuit court granted summary judgment in favor of SunTrust Bank.
We reject without comment Demakis's assertions that the foreclosure complaint failed to state a cause of action and that SunTrust was estopped from foreclosing due to "unclean hands." Nevertheless, we reverse because SunTrust sought to foreclose on a home equity line of credit (HELOC) that was not authenticated.1 Koulouvaris, 247 So. 3d 652 (Fla. 2d DCA 2018), the bank failed to properly authenticate the HELOC. In both his affirmative defenses and his memorandum in opposition to summary judgment, Demakis contended that a HELOC is not a negotiable instrument and must be authenticated with evidentiary proof. He even cited to Koulouvaris in his first affirmative defense. The Koulouvaris court distinguished a HELOC note from a promissory note secured by a mortgage. Id. at 654–55. A promissory note is an unconditional promise to pay a fixed amount of money, and as such, it is a self-authenticating 1In addition, the inclusion of $2099 for hazard insurance disbursements in the damages award lacked evidentiary support.
However, our reversal in this case renders this issue moot.
- 3 - negotiable instrument. Id. On the other hand, a HELOC note does not require payment of a fixed sum. Rather, it is a promise to repay draws that may be taken from time to time against a credit limit. Id. at 653–55. Therefore, Koulouvaris held that the HELOC in that case was not self-authenticating, and absent other proof of authentication, it was inadmissible into evidence. Id. at 655. As in Koulouvaris, the unauthenticated HELOC in this case would not have been "admissible in evidence" at trial and, as such, it was not a sufficient basis for a summary judgment. See Fla. R. Civ. P. 1.510(c). Accordingly, we reverse and remand for further proceedings. Reversed and remanded. SLEET and ATKINSON, JJ., Concur.
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- Third Federal Savings and Loan Associaiton of Cleveland v. Leah G. Koulouvaris A/ K/ a Leah Koulouvaris, 247 So. 3d 652 (Fla. 2d DCA 2018)