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Liukkonen v. Bayview Loan Servicing, LLC

Florida Court of Appeals, Fourth District

March 28, 2018

JOANNE LIUKKONEN, Appellant,
v.
BAYVIEW LOAN SERVICING, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE 13-004110(11).

          Jonathan Kline of Jonathan Kline, P.A., Weston, for appellant.

          Cynthia L. Comras, David Rosenberg and Jarrett Cooper of Robertson, Anschultz & Schneid, P.L., Boca Raton, for appellee.

          FORST, J.

         Appellant Joanne Liukkonen appeals a final judgment of foreclosure entered against her and her husband. She contends Appellee Bayview Loan Servicing, LLC, violated the best evidence rule when it introduced mere copies of the loan modifications without explanation. We disagree and affirm. We write to clarify our jurisprudence on this issue and affirm without comment all other issues raised by Appellant.

         Background

         At trial, Bayview introduced an original note, but only introduced copies of the loan modifications (which affected the interest rates) and offered no explanation as to why it did not produce the originals. Appellant offered no objection at the time, but objected during closing and in her motions to strike and for rehearing. The objections were overruled.

         Analysis

         We review evidentiary rulings for abuse of discretion. Holt v. Calchas, LLC, 155 So.3d 499, 503 (Fla. 4th DCA 2015). As a preliminary matter, Appellant has waived her best evidence rule objection because she failed to make it contemporaneously with the introduction of the copies. See Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010).

         We nevertheless address the merits on this issue to clarify our decision in Rattigan v. Central Mortgage Co., 199 So.3d 966 (Fla. 4th DCA 2016). There, a bank introduced an original note, but violated the best evidence rule by foreclosing under the terms of a modification without introducing the original or a copy into evidence. We held that "[w]ithout the agreement itself in evidence, testimony regarding the contents of the agreement is not permitted." Id. at 967 (citing J.H. v. State, 480 So.2d 680, 682 (Fla. 1st DCA 1985)). Therefore, there was no proper evidence to support foreclosure under the terms of the modified note.

         We noted in dicta:

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)).

Rattigan, 199 So.3d at 967 (citing J.H., 480 So.2d at 682). In J.H., the court simply held the Health and Rehabilitative Services' failure to introduce an agreement it entered into with a mother-the nonfulfillment of which was the basis for its dependency petitions-violated the best evidence ...


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