promissory note

Know the Best Evidence Rule

Posted by David Adelstein on June 02, 2016
Evidence / Comments Off on Know the Best Evidence Rule

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I previously discussed the best evidence rule.   Check out the article for more information on this evidentiary rule. It is important to know the best evidence rule when litigating negotiable instruments or even contractual disputes.  You do not want to try such a dispute without understanding the application of the best evidence rule.

The recent mortgage foreclosure case of Rattigan v. Central Mortgage Company, 41 Fla. L. Weekly D1312a (Fla. 4th DCA 2016) is an example of the application of the best evidence rule. In this case, the lender at trial failed to introduce the written loan modification to a promissory note that increased the principal amount of the note.   The modification to the note was a different instrument than the original note (that was modified). The lender was proceeding on the loan modification and not the original note.  The Fourth District held that the lender:

[V]iolated the best evidence rule by virtue of its failure to introduce the [written] modification at trial (either the original or duplicate with an explanation as to why the original note was unavailableWithout the introduction of the modification, all testimony regarding the contents of that modification…was erroneous. As a result, there is no proper evidence in the record which could support the final judgment.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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A Promissory Note is NOT Hearsay

Posted by David Adelstein on April 23, 2016
Evidence / Comments Off on A Promissory Note is NOT Hearsay

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A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence.

The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of the contractual relationship and the rights and obligations of the parties to the note.” Deutsche Bank National Trust Co., supra.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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