George Demakis v. Suntrust Bank
CourtDistrict Court of Appeal of Florida
Date FiledFebruary 24, 2021
Docket2D19-3751
StatusPublished
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Full Opinion
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GEORGE DEMAKIS, a/k/a George D. )
Demarkis, )
)
Appellant, )
)
v. ) Case No. 2D19-3751
)
SUNTRUST BANK, UNKNOWN )
SPOUSE OF GEORGE D. DEMAKIS, )
a/k/a George Demarkis, UNKNOWN )
TENANT #2, and ALL UNKNOWN )
PARTIES CLAIMING AN INTEREST )
BY, THROUGH, UNDER, OR AGAINST )
ANY DEFENDANT OR CLAIMING ANY )
RIGHT, TITLE, AND INTEREST IN THE )
SUBJECT PROPERTY, )
)
Appellees. )
________________________________ )
Opinion filed February 24, 2021.
Appeal from the Circuit Court for Pinellas
County; George M. Jirotka, Judge.
Ivan D. Ivanov of Ivanov of PLLC, Tampa,
for Appellant.
Arthur S. Barksdale IV and Philip D.
Storey of Alvarez, Winthrop, Thompson &
Storey, P.A., Orlando, for Appellee
SunTrust Bank.
No appearance for remaining Appellees.
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
In April 2004, Demakis executed a mortgage on the subject property as
security for a line of credit in the amount of $30,000. Subsequently, in March 2005,
after two prior loan modifications, Demakis obtained the subject HELOC with a credit
limit of $235,000 that was secured by a modification of the mortgage. Prior to the
hearing on the motion for summary judgment, SunTrust filed a copy of the HELOC with
the circuit court. However, as in Third Federal Savings & Loan Ass'n of Cleveland v.
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 654β55. 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.
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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 653β55. 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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