Best Evidence Rule: Law Offices of Evan M. Rosen, P.A. Wins Foreclosure Case on Appeal

From The Law Offices of Evan M. Rosen

We lost a trial in January of 2015 even though I thought we had a very clear winnable issue based on the “best evidence rule.” This rule is a fairly small body of law but it seems many lawyers and judges struggle to fully comprehend what it means and how it gets applied. In this case, the trial judge gave us ample time and consideration to make our argument. However, he ultimately did not agree with our position and entered final judgment against our clients. We appealed and the Fourth District Court of Appeal of Florida agreed with us.


As you all may know, winning a foreclosure case in Florida is a difficult task, but it can be done. Getting a lost case reversed is next to impossible. But in this particular matter, it was.

Being that we here at are somewhat familiar with this case, we decided to break it down the best we could from a ‘lay person’s” prospective, which we will mostly pull from the trial transcript and briefs so it is easier to follow.


In the District Court of Appeal
Fourth District of Florida
CASE NO. 4D15-1087
(Lower Tribunal Case No. 13-4386(11))


The Initial Loan

In 2006, Defendants / Appellants, purchased a home in Miramar, Florida. To purchase the home the Defendants / Appellants obtained a loan for $650,000 from GL Financial Services, LLC and executed a Note in their favor. Along with the Note, Defendants / Appellants also executed a Mortgage. The Note was an interest only note for the first ten years, with a fixed interest rate until November of 2011. Additionally, in section 3(D) of the Note, the terms specifically state that “unpaid Principal can never exceed a maximum amount equal to 115% of the Principal amount I originally borrowed.” In order to comply with this provision, the Defendants’ / Appellants’ principal could never exceed $747,500. However, at trial, Plaintiff / Appellee, Central Mortgage Company (CMC), sought and was granted $760,323.46 in principal.

The Loan Modification

After the Note and Mortgage were executed in 2006, Defendants / Appellants timely made their full monthly payments for many years. However, the evidence presented at trial shows that on or about May of 2011, at a time when the Defendants were still current on their payments, CMC and the Defendants / Appellants reached an agreement to modify the terms of the loan. Although the terms of the Modification are unknown and unproven, it appears – from the Payment History admitted in evidence at trial – that the Modification, at the very least, altered and superseded the monetary terms of the 2006 Note, as CMC increased the principal by $12,484.03.

The Foreclosure Action

On February 19, 2013, CMC filed a foreclosure action against Defendants/Appellants alleging failure to make the August 1, 2012 payment “and all subsequent payments.” CMC also alleged that it had satisfied all conditions precedent to the filing of the foreclosure action and had accelerated the debt. It then requested $760,323.46 in damages, as the amount of principal due on the note. CMC attached to the Complaint the 2006 Note and Mortgage and an alleged Default Letter dated October 2, 2012. The 2011 Modification was neither attached to the Complaint nor even mentioned as part of the allegations.

The Trial

Trial was finally held on January 8, 20151. In preparation for trial, CMC filed eight Witness and Exhibits Lists, however, none ever listed the Modification between the parties. At trial, CMC elicited testimony from one witness, Natalie McClendon, Foreclosure Supervisor for CMC. Through this witness, CMC admitted that there is a written loan modification to the Note and that damages were sought based on that Modification.

Q. And the loan has actually been modified, correct?
A. According to my notes that I have written down in my folder
here, this loan has been –there’s a modification.

Q. . . . we talked in the pay history about the loan mod – and
that’s in writing when there’s a loan mod in this case, right?
A. Yes.

Q. And the amount on the judgment and the amount on the pay
history for principal that’s being sought is $760,323.46,
A. Yes

Q. And that’s because there’s a loan modification, correct?
A. Yes.

Yet, no modification was admitted at trial to show the terms of the agreement between the parties. As such, no evidence was introduced to support CMC’s claim to have the right to collect $760,323.46 in principal – an amount which violates the terms of the 2006 Note admitted into evidence.


The lower court erred in denying the Defendants’ / Appellants’ Motion for Involuntary Dismissal because CMC failed to admit the operative modified contract between the parties. Although CMC alleged that the operative contract between the parties was the 2006 Note and Mortgage admitted at trial, CMC’s own witness contradicted this by admitting that there had been a modification of the terms of the contract and 2) CMC sought to recover damages based on those modified terms.

CMC was required to attach the Modified Note to the Complaint, but failed to do so.

Further, under the Florida evidence code, CMC was required to surrender and admit the original Modified Note into evidence in order to prove the contract and the contents thereof.

The Best Evidence Rule Requires the Admission of the Modified Note in Order to Prevail at Trial

Because the subject Note and Mortgage were modified, in writing, the Best Evidence Rule required that the Modification be admitted as evidence of the terms between the parties.

Without the admission of the Modification, there is no evidence of the agreement of the parties, including the amount due or any other terms that could affect the foreclosure action. All we know from Ms. McClendon is that the modification changed the monetary terms of the contract to an unknown amount, however, we do not know if the Modification changed the acceleration requirements or any other terms which could affect CMC’s right to enforce. As such, the trial court committed harmful error in denying the Defendants’/Appellants’ Motion for Involuntary Dismissal.

The Defendants’ / Appellants’ Motion for Involuntary Dismissal Should Have Been Granted Due to CMC’s Failure to Surrender the Original Modified Note at Trial

In addition to the requirement of admitting a promissory note and mortgage into evidence, the Florida District Courts have held that the original promissory note must be surrendered before the issuance of a final judgment.

CMC failed to surrender the original Modified Note which it sought to enforce.

4th DCA Opinion Reversing Final Judgment & Remanding for Entry of Involuntary Dismissal

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.