       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            SVI CAPITAL, LLC,
                                Appellant,

                                     v.

   NICHOLAS R. COON and DEANNA DUNSTAN, his wife, PAUL C.
   CONDON and MARY ELLEN CONDON, his wife, AMERICAN AIR
     CONDITIONING DISTRIBUTORS LLC d/b/a FLORIDA AIR
  CONDITIONING, a Delaware Limited Liability Company, COASTAL
 SUPPLY COMPANY OF SOUTH FLORIDA, INC., a Florida corporation,
    and SASSO AIR CONDITIONING, INC., a Florida Corporation,
                          Appellees.

                              No. 4D14-1685

                            [January 20, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Timothy    McCarthy,      Judge;   L.T.    Case    No.
2012CA003317XXXXMB.

  Jeffrey M. Garber of Ciklin Lubitz Martens & O’Connell, West Palm
Beach, for appellant.

   Inger Garcia of Garcia Legal Group, P.A., Fort Lauderdale, for appellees
Nicholas R. Coon, Deanna Dunstan, Paul C. Condon, and Mary Ellen
Condon.

PER CURIAM.

    The plaintiff, SVI Capital LLC (“SVI”), appeals an order determining that
defendants Nicholas Coon and Paul Condon are not liable for a deficiency
following a final judgment of foreclosure. We reverse.

    After defaulting on a construction loan, Coon, with his wife Deanna
Dunston, and Condon, with his wife Mary Ellen Condon, entered into a
stipulation of settlement and a forbearance agreement with Legacy Bank
of Florida (“Legacy”), whereby they agreed to the entry of a final judgment
of foreclosure upon any further default. Subsequently, a final judgment
of foreclosure was entered against Coon, Condon, and their spouses, based
upon the original promissory notes and mortgages which had been filed
with the court. The court retained jurisdiction to enter a deficiency
judgment. Thereafter, Legacy assigned its rights to SVI, which was
substituted as party plaintiff.

   After the property sold at a public auction for less than the outstanding
amount of the loan, SVI sought a deficiency judgment. The trial court
ultimately found that there was a deficiency, but determined that Coon
and Condon were not liable for it, stating:

         The only attempt at proving independent liability was the
      Plaintiff’s generic request that the court take Judicial Notice
      of non specified documents which are part of 78 separate
      docket entries in the Court File. Other than citing FS
      90.202(b) (Matters which may be judicially noticed) no attempt
      was made to establish a predicate for the admissibility of any
      documents . . . .

SVI contends that the court erred in failing to consider the original notes
and mortgages, which had been submitted and considered by the court in
connection with the earlier final judgment of foreclosure.

   We reverse on authority of Deutsche Bank National Trust Co. v. Clarke,
87 So. 3d 58, 62 (Fla. 4th DCA 2012), in which this Court held that a
mortgagee’s submission of a copy of the note satisfied the best evidence
rule where the original note had already been surrendered to the court in
an earlier summary judgment hearing. Similarly, in the present case, the
original notes and mortgages were surrendered to the court by Legacy at
the time of the final judgment of foreclosure. Because these original
documents, which were already in evidence, established Coon’s and
Condon’s liability, the trial court erred in failing to find them liable for the
deficiency judgment.

   Reversed and remanded for further proceedings consistent herewith.

WARNER, MAY and DAMOORGIAN, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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