MARLENE RATTIGAN AND ERROL RATTIGAN, APPELLANTS,
v.
CENTRAL MORTGAGE COMPANY, APPELLEE
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The Rattigans' foreclosure judgment was reversed because the bank failed to introduce a written loan modification at trial, violating the best evidence rule. Without the modification in evidence, testimony about its contents was inadmissible, leaving no proper evidentiary basis for the foreclosure judgment.
The bank violated the best evidence rule by failing to introduce the written modification, making all testimony about the modification's contents inadmissible. Without proper evidentiary support, the foreclosure judgment cannot stand.
[1] A ruling on a motion for involuntary dismissal is reviewed de novo, viewing the evidence in the light most favorable to the nonmoving party.
[2] The best evidence rule requires an original writing, recording, or photograph to prove its contents, unless an exception applies.
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Join FLexlaw to unlock all legal intelligence“When the terms of an agreement are necessary for resolution of an issue brought before a court, the failure to introduce the agreement itself into evidence violates the best evidence rule.”
Establishes the core principle that agreements must be produced in their original form when their terms are material to the case.
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Join FLexlaw to unlock all legal intelligenceThe bank foreclosed on the Rattigans' property based on a promissory note capped at $747,500 in principal. At trial, the bank sought to recover approx…
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Appellants Marlene and Errol Rattigan had their property foreclosed upon by Ap-pellee Central Mortgage Company (“the Bank”). Because the Bank failed to introduce the note that was the basis for the foreclosure, we reverse and remand for the entry of involuntary dismissal.1
Rulings on motions for involuntary dismissal are reviewed de novo. Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014). This *967Court must view the evidence in the light most favorable to the nonmoving party. Id.
The best evidence rule, codified at section 90.952, Florida Statutes (2015), says that “[e]xeept as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.” Id. None of the exceptions to the rule are applicable in this case. When the terms of an agreement are necessary for resolution of an issue brought before a court, the failure to introduce the agreement itself into evidence violates the best evidence rule. J.H. v. State, 480 So.2d 680, 682 (Fla. 1st DCA 1985). Without the agreement itself in evidence, testimony regarding the contents of the agreement is not permitted. Id.
Here, the original note which was introduced into evidence capped the principal amount that could be owed at $747,500. The Bank sought to, and eventually did, recover approximately $760,000 in principal. To explain this discrepancy, the sole witness at trial testified that the loan had been modified, in writing, in 2012 and that the modification either raised or eliminated the original cap.
The Bank was clearly proceeding under the modified note, i.e., a different note. This written modification was as much a part of the parties’ agreement as the original note itself. The Bank violated the best evidence rule by virtue of its failure to introduce the modification at trial (either the original or a duplicate with an explanation as to why the original note was unavailable, see Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So.3d 58, 62 (Fla. 4th DCA 2012)). J.H., 480 So.2d at 682. Without the introduction of the modification, all testimony regarding the contents of that modification, including the testimony supporting the $760,000 sought, was erroneous. Id. As a result, there is no proper evidence in the record which could support the final judgment.
We therefore reverse the final judgment of foreclosure entered below and remand for the entry of involuntary dismissal.
Reversed.
GROSS and KLINGENSMITH, JJ., concur.
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Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…. Bayview Loan Servs. LLC, 199 So. 3d 526, 526 (Fla. 4th DCA 2016) (concluding that involuntary dismissal was appropriate where "[t]here was no proof at trial that the original plaintiff ... had standing to foreclose"); Rattigan v. Cent. Mortg. Co., 199 So. 3d 966, 967 (Fla. 4th DCA 2016) (reversing for involuntary dismissal when "there is no proper evidence in the record which could support the final judgment"); Alfonso v. JPMorgan Chase Bank, N.A., 182 So. 3d 930, 932 (Fla. 4th DCA 2016) (same); Walters v.…1 / 2
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Liukkonen v. Bayview Loan Servicing LLC, 243 So. 3d 981 (Fla. 4th DCA 2018)…o make it contemporaneously with the introduction of the copies. See Johnston v. Hudlett, 32 So. 3d 700, 704 (Fla. 4th DCA 2010). We nevertheless address the merits on this issue to clarify our decision in Rattigan v. Central Mortgage Co., 199 So. 3d 966 (Fla. 4th DCA 2016). There, a bank introduced an original note, but violated the best evidence rule by foreclosing under the terms of a modification without introducing the original or a copy into evidence. We held that “[w]ithout the agreement…
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Morales v. Fifth Third Bank, 275 So. 3d 197 (Fla. 4th DCA 2019)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Deutsche Bank Nat'l Tr. Co. for Ameriquest Mortg. Sec., Inc. v. Huber, 137 So. 3d 562 (Fla. 4th DCA 2014)
- Deutsche Bank Nat'l Tr. Co. for First Franklin Mortg. Loan Tr. 2006-FF7 v. Ezra Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012)
- In the Interest of J.H. v. State, 480 So. 2d 680 (Fla. 1st DCA 1985)