Attorney Mark Stopa: Best Evidence Fail

Florida Appeals Court Reverses Foreclosure Judgment Over Best Evidence Rule Violation

Case: James McCampbell v. Federal National Mortgage Association (Fannie Mae)
Court: District Court of Appeal of Florida, Second District
Case No.: 2D16-177
Opinion Filed: February 14, 2018
Read the full opinion here »

In a significant ruling, the Florida Second District Court of Appeal reversed a foreclosure judgment after finding that the trial court improperly admitted a copy of a loan modification agreement instead of the original.

Case Background

• In 2007, James McCampbell executed an original mortgage and promissory note.

• In 2010, a loan modification agreement was signed, which modified the original loan and all related documents.

• At trial, Fannie Mae introduced only a copy of the loan modification agreement through its witness.

• The witness neither produced the original document nor explained its absence.

• Over McCampbell’s objection, the trial court admitted the copy and ruled in Fannie Mae’s favor.

Appellate Court Decision

The appellate court ruled this was error, citing Florida’s Best Evidence Rule (Section 90.952, Fla. Stat. 2012), which requires the original writing (or a proper explanation of its absence) to prove the contents of a document.

The Court noted:

“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.” (Rattigan v. Central Mortgage Co., 199 So. 3d 966 (Fla. 4th DCA 2016))

Because Fannie Mae failed to introduce the original or explain why it was unavailable, the foreclosure judgment could not stand.

The court also cited:

• Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189 (Fla. 2d DCA 2017)

• Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012)

• Heller v. Bank of Am., NA, 209 So. 3d 641 (Fla. 2d DCA 2017)

Each reinforces that testimony about the contents of a missing document, without producing the original or explaining its absence, is inadmissible.

Outcome

The foreclosure judgment was reversed and remanded for a new trial.

The court rejected Fannie Mae’s attempt to uphold the ruling under the “tipsy coachman” doctrine, finding that judicial notice of unrelated bankruptcy pleadings did not cure the evidentiary failure.

✅ Key Takeaway for Homeowners:
When foreclosure cases involve modified loans, the original modification agreement is as essential as the original note. If the bank cannot produce it—or explain why it’s missing—their case can and should fail under Florida’s Best Evidence Rule.

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Posted in evidence, Motions, Uncategorized |