190 So. 3d 662
Fla. Dist. Ct. App.2016Background
- Deutsche Bank (Bank), assignee and possessor of an original promissory note and mortgage executed by Jared and Susan Martinez, sued to foreclose and attached a copy of the note and later filed the original with the court.
- The copy and original bore indorsements showing the note had been specifically indorsed to Bank, supporting Bank’s standing to enforce the note.
- At trial Bank called a loan servicer analyst and sought to admit the original note into evidence; defendants objected on hearsay grounds and argued the note could be admitted only as a business record.
- The trial court instructed Bank to prove the note qualified under the business‑records exception; Bank failed to do so and the court sustained the objection, excluding the note.
- After Bank rested, the court granted defendants’ motion for involuntary dismissal and entered final judgment for defendants; Bank appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a promissory note is hearsay when offered at trial in a foreclosure | Note is an operative contractual instrument offered for its legal effect, not to prove the truth of asserted facts, so it is not hearsay | Note constitutes a written assertion; therefore admission requires an applicable hearsay exception (e.g., business records) | Promissory note is not hearsay; admissible for its independent legal effect |
| Whether plaintiff must establish the note is a business record to admit it | No — because the note is nonhearsay, Bank need not prove business‑records status to admit the note | Yes — trial court required proof (custodian testimony) under business‑records exception | Bank was not required to prove the note was a business record; trial court erred in excluding the note |
Key Cases Cited
- Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994) (signed instruments have independent legal significance and are nonhearsay)
- In re Vargas, 396 B.R. 511 (Bankr. C.D. Cal. 2008) (promissory note itself is not hearsay)
- Remington Invs., Inc. v. Hamedani, 64 Cal. Rptr. 2d 376 (Cal. Ct. App. 1997) (note is operative contractual document admissible upon authentication)
- Cadle Co. v. Errato, 802 A.2d 887 (Conn. App. Ct. 2002) (business‑records exception does not apply to promissory note sued on)
- Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Tr. I, 331 S.W.3d 500 (Tex. App. 2010) (contractual note has legal effect independent of truth of statements and is not hearsay)
- Bank of Am. NA v. Neis, 835 N.W.2d 527 (Wis. Ct. App. 2013) (notes are nonhearsay when offered for legal effect)
- Boumarate v. HSBC Bank USA, N.A., 172 So. 3d 535 (Fla. 5th DCA 2015) (plaintiff must tender original promissory note to trial court in foreclosure)
- Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012) (possession of original note significant in enforcing its terms)
- Burkey v. State, 922 So. 2d 1033 (Fla. 4th DCA 2006) (admissibility rulings reviewed for abuse of discretion; hearsay classification reviewed de novo)