JAMES MC CAMPBELL v. FEDERAL NATIONAL MORTGAGE ASSOCIATION

• Court: District Court of Appeal of Florida
• Decided: February 14, 2018
• Docket: 16-0177
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JAMES McCAMPBELL, ) ) Appellant, ) ) v. ) Case No. 2D16-177 ) FEDERAL NATIONAL MORTGAGE ) ASSOCIATION, ) ) Appellee. ) )

Opinion filed February 14, 2018.

Appeal from the Circuit Court for Sarasota County; Lee Haworth, Judge.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.

Robert R. Edwards of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.

CASANUEVA, Judge.

In this appeal from a final judgment of foreclosure, James McCampbell

contends that the trial court erred in admitting copies of his loan modification

agreement, and Federal National Mortgage Association (Fannie Mae) correctly

concedes that the admission of the copies was improper. Accordingly, we reverse.1

1We do not find merit in Fannie Mae's argument that the appeal should be affirmed based on the tipsy coachman doctrine because, although the trial court took On October 26, 2007, Mr. McCampbell signed the original mortgage and

promissory note on the property, and on July 14, 2010, an agreement modifying the

original loan and all of the original loan documents was executed. At trial, Fannie Mae

called one witness to testify and that witness did not produce the original loan

modification agreement nor did the witness explain its absence. Rather, Fannie Mae

sought the admission of a copy of the agreement. Over objection, the trial court

admitted the copy.

We hold that the trial court erred in admitting a copy of the document and

remand for a new trial. Section 90.952, Florida Statutes (2012), provides as follows:

"Except as otherwise provided by statute, an original writing . . . is required in order to

prove the contents of the writing . . . ." In Rattigan v. Central Mortgage Co., 199 So. 3d

966, 967 (Fla. 4th DCA 2016), a similar failure resulted in a reversal of a foreclosure

judgment. In that case, the bank, as here, was proceeding under a modified loan. The

Fourth District noted:

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.

....

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)).

judicial notice of certain bankruptcy pleadings, no other pleading accompanied the judicial notice request.

-2- Id. (citing J.H. v. State, 480 So. 2d 680, 682 (Fla. 1st DCA 1985)). As a result, the

admission of testimony regarding the content of the modification was error. Here, the

identical failure to admit the modification agreement took place and resulted in the

identical evidentiary error. See also Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189,

193 (Fla. 2d DCA 2017) (holding that where bank's witness did not provide any

explanation regarding why the original allonge was not available, the "testimony

regarding the contents of the allonge was inadmissible under the best evidence rule").

We reverse and remand for a new trial. See Heller v. Bank of Am., NA,

209 So. 3d 641, 645 (Fla. 2d DCA 2017) (reversing and remanding final judgment of

foreclosure for a new trial where trial court improperly allowed the bank's witness to give

hearsay testimony regarding content of business records which had not been admitted

into evidence).

Reversed and remanded.

SALARIO and BADALAMENTI, JJ., Concur.

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