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Loan Modification Agreement is not a negotiable instrument and a duplicate, if properly authenticated is admissible.
On July 5, 2018, the Third District Court of Appeal in Bank of New York Mellon v. Garcia, Case No, 3D17-2041, 43 Fla. L. Weekly D1534b (Fla. 3d DCA July 5, 2018) held that “a loan modification agreement is not a negotiable instrument and a duplicate, if properly authenticated, is admissible to the same extent as the original and without need for an explanation as to why the original was unavailable.” citing Liukkonen v. Bayview Loan Servicing, 43 Fla. L. Weekly, D663 *2 (Fla. 4th DCA March 28, 2018). The background of this case is that at trial the Bank sought to introduce a duplicate of the loan modification executed by the parties, and Garcia objected asserting that under the Best Evidence Rule (Fla. Stat. 90.252) that an original was required. Garcia further argued that Fla. Stat. 90.953 was inapplicable because the loan modification agreement is a negotiable instrument. The trial court sustained the objection and denied admission of the loan modification agreement duplicate. When Garcia moved for an involuntary dismissal, the trial court granted same based on the failure to introduce the original loan modification agreement and that the initial default alleged in the Complaint was more than five years old.
The Third District Court of Appeal held that the trial court erred in entering a final judgment of dismissal in favor of Garcia. As a loan modification is not a negotiable instrument, and as the subject Complaint pled the initial default and all subsequent payments. Accordingly, the final judgment is reversed and remanded for a new trial.
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