Heller v. Bank of America, N.A.
2017 Fla. App. LEXIS 859
Fla. Dist. Ct. App.2017Background
- Plaintiff Bank of America (as successor/servicer) sued to foreclose a promissory note; complaint attached a copy of the note with an undated, blank endorsement.
- Heller pleaded defenses including that the Bank could not produce the original note and demanded strict proof.
- At bench trial the Bank offered a copy of the note; defense objected under Florida's best-evidence rule (§ 90.953).
- Bank counsel orally represented the original had been filed with the clerk; the original was not presented in court and the clerk's file was not inspected or stipulated to.
- A Bank representative testified about ownership/possession and timing of endorsement based on business records that were not admitted; defense objected as hearsay.
- Trial court admitted the copy over the best-evidence objection, allowed the hearsay testimony, and entered a foreclosure judgment; the appellate court reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a copy of a promissory note may be admitted when the original is allegedly filed with the clerk | Original was surrendered to court file before trial; admitting the copy is proper | Copy is inadmissible under best-evidence rule for negotiable instruments absent production of the original or satisfactory excuse | Reversed — copy improperly admitted; proponent must prove original was surrendered or provide acceptable reason under § 90.953(1) |
| Whether testimony about business records not admitted into evidence may be used to prove note possession/endorsement timing | Testimony based on custodian/business records establishes servicer/investor status and possession timing | Such testimony is inadmissible hearsay absent foundation and admission of the records | Reversed — trial court improperly admitted hearsay; testimony based on unproduced business records was not permitted |
Key Cases Cited
- Sottilaro v. Figueroa, 86 So. 3d 505 (Fla. 2d DCA 2012) (standards for reviewing evidentiary rulings and de novo questions of evidence code interpretation)
- Stone v. BankUnited, 115 So. 3d 411 (Fla. 2d DCA 2013) (promissory notes are negotiable instruments)
- Fair v. Kaufman, 647 So. 2d 167 (Fla. 2d DCA 1994) (original promissory note required at trial or satisfactory excuse for failure)
- Deutsche Bank Nat'l Trust Co. v. Clarke, 87 So. 3d 58 (Fla. 4th DCA 2012) (surrendering original to court file prior to offering copy can satisfy best-evidence concerns)
- Perry v. Fairbanks Capital Corp., 888 So. 2d 725 (Fla. 5th DCA 2004) (possession of original note relevant to enforceability)
- Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So. 2d 838 (Fla. 2d DCA 1994) (unsworn statements of counsel cannot substitute for proof of factual matters)
- Deutsche Bank Nat'l Trust Co. v. Huber, 137 So. 3d 562 (Fla. 4th DCA 2014) (court cannot assume a surrendered note is the original without record support)
- Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011) (proponent bears burden to prove admissibility of evidence)
- Sas v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013) (reversal required when evidence improperly admitted over objection in foreclosure context)