Deutsche Bank National Trust Co. v. Clarke
2012 Fla. App. LEXIS 6036
| Fla. Dist. Ct. App. | 2012Background
- Foreclosure action where plaintiff did not introduce the original note at trial; original note and related documents were filed with the court file prior to trial.
- Trial judge admitted a copy of the note despite no best evidence objection; later dismissed for failure to admit originals.
- Appellate court reviews involuntary dismissal de novo and considers best evidence rule under Fla. Stat. 90.953.
- Florida law requires production of the original negotiable note for foreclosure; the mortgage is not itself a negotiable instrument.
- Court held surrender of the original note to the court file before trial can satisfy the best evidence rule by leaving no enforceable duplicate in circulation.
- Remand for merits review or new trial if necessary, rather than returning for retrial solely to affix evidentiary stamps to documents already in file.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original note must be produced at trial | Clerk file surrender satisfies best evidence | Original note must be admitted in evidence | Original note must be produced; duplicates may be admitted if surrender satisfies rule |
| Scope of 90.953(1) regarding negotiable instruments | Note is negotiable; original required | Mortgage not negotiable; duplicates acceptable | Original note required; mortgage not covered by 90.953(1) as negotiable instrument |
| Effect of surrender of the note to the court file | Surrender satisfies best evidence rule | Surrender does not substitute for admission of original | Surrender can satisfy the rule when originals are filed; allowed to use copies |
| Role of trial court’s evidentiary ruling on dismissal | Evidence supported foreclosure; no proper basis for dismissal | Lack of admissible originals requires dismissal | Remand for merits; reversal of dismissal order |
| Necessity of producing the mortgage at trial | Mortgage not required under 90.953(1) | Original mortgage should be produced | Mortgage not required; can be proved by duplicate where appropriate |
Key Cases Cited
- Perry v. Fairbanks Capital Corp., 888 So.2d 725 (Fla. 5th DCA 2004) (original note required; mortgage is incident to note; surrender may be sufficient for duplicates)
- Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla.1955) (production of original note before decree; mortgage not necessarily required)
- State Street Bank & Trust Co. v. Lord, 851 So.2d 790 (Fla.4th DCA 2003) (to maintain foreclosure, produce original note or explain failure to do so)
- Johns Supply Co. v. McNeeley, 169 So. 732 (Fla.1936) (master's report should show production of original note)
- Lenfesty v. Coe, 16 So. 277 (Fla.1894) (personal obligation must be produced or explained)
- Pastore-Borroto Development, Inc. v. Marevista Apartments, 596 So.2d 526 (Fla.3d DCA 1992) (discussion of original document production in foreclosure)
- Figueredo v. Bank Espirito Santo, 537 So.2d 1113 (Fla.3d DCA 1989) (original note production principles in foreclosure)
- Fair v. Kaufman, 647 So.2d 167 (Fla.2d DCA 1994) (note and mortgage production; related discussion cited)