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If Original Loan Modification cannot be introduced, there must be an explanation as to why. On February 14, 2018, the Second District Court of Appeal in McCampbell v. Fed. Nat'l Mortg. Ass'n, No. 2D16-177, 2018 WL 844361, (Fla. Dist. Ct. App. Feb. 14, 2018), held that the “trial court erred in admitting copies of the loan modification agreement where there was no explanation as to why the original loan modification was not introduced.” This decision is important as it cites to Rattigan v. Central Mortgage Co., 199 So. 3d 966, 967 (Fla. 4th DCA 2016), in which the Fourth District Court of Appeal held, “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 rule.”
Appellant, McCampbell appealed the final judgment of foreclosure in favor of the Bank, contending 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 were improper.
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, and over objection the trial court admitted the copy.
The Second District Court of Appeal reversed and remanded the lower court’s judgment for a new trial, citing to Heller v. Bank of Am., N.A., 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).
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