NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JAMES McCAMPBELL, )

)

Appellant, )

)

v. ) Case No. 2D16-177

)

FEDERAL NATIONAL MORTGAGE )

ASSOCIATION, )

)

Appellee. )

)

Opinion filed February 14, 2018.

Appeal from the Circuit Court for Sarasota 

County; Lee Haworth, Judge.

Mark P. Stopa of Stopa Law Firm, Tampa, 

for Appellant. 

Robert R. Edwards of Choice Legal Group, 

P.A., Fort Lauderdale, for Appellee.

CASANUEVA, Judge.

In this appeal from a final judgment of foreclosure, James McCampbell 

contends that the trial court erred in admitting copies of his loan modification 

agreement, and Federal National Mortgage Association (Fannie Mae) correctly 

concedes that the admission of the copies was improper. Accordingly, we reverse.1

1We do not find merit in Fannie Mae's argument that the appeal should be 

affirmed based on the tipsy coachman doctrine because, although the trial court took 
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On October 26, 2007, Mr. McCampbell signed the original mortgage and 

promissory note on the property, and on July 14, 2010, an agreement modifying the 

original loan and all of the original loan documents was executed. At trial, Fannie Mae 

called one witness to testify and that witness did not produce the original loan 

modification agreement nor did the witness explain its absence. Rather, Fannie Mae 

sought the admission of a copy of the agreement. Over objection, the trial court 

admitted the copy.

We hold that the trial court erred in admitting a copy of the document and 

remand for a new trial. Section 90.952, Florida Statutes (2012), provides as follows: 

"Except as otherwise provided by statute, an original writing . . . is required in order to 

prove the contents of the writing . . . ." In Rattigan v. Central Mortgage Co., 199 So. 3d 

966, 967 (Fla. 4th DCA 2016), a similar failure resulted in a reversal of a foreclosure 

judgment. In that case, the bank, as here, was proceeding under a modified loan. The 

Fourth District noted:

When the terms of an agreement are necessary for 

resolution of an issue brought before a court, the failure to 

introduce the agreement itself into evidence violates the best 

evidence rule. 

. . . .

This written modification was as much a part of the parties' 

agreement as the original note itself. 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)).

judicial notice of certain bankruptcy pleadings, no other pleading accompanied the 

judicial notice request.
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Id. (citing J.H. v. State, 480 So. 2d 680, 682 (Fla. 1st DCA 1985)). As a result, the 

admission of testimony regarding the content of the modification was error. Here, the 

identical failure to admit the modification agreement took place and resulted in the 

identical evidentiary error. See also Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189, 

193 (Fla. 2d DCA 2017) (holding that where bank's witness did not provide any 

explanation regarding why the original allonge was not available, the "testimony 

regarding the contents of the allonge was inadmissible under the best evidence rule").

We reverse and remand for a new trial. See Heller v. Bank of Am., NA, 

209 So. 3d 641, 645 (Fla. 2d DCA 2017) (reversing and remanding final judgment of 

foreclosure for a new trial where trial court improperly allowed the bank's witness to give 

hearsay testimony regarding content of business records which had not been admitted 

into evidence). 

Reversed and remanded.

SALARIO and BADALAMENTI, JJ., Concur.