Using the Best Evidence Rule As You Follow the Money

The Best Evidence Rule in Florida and Federal Courts Applied to Notes, Mortgages and Assignments

The problem with foreclosure litigation is that the homeowner is dealing with rebuttable presumptions about the testimony and the documents admitted into evidence. They are admitted into evidence because there is no timely objection from the homeowner or the foreclosure defense attorney.

The note, mortgage and assignment are presumed to be valid instruments if they conform to the requirements of law as to form and content. In that case they are facially valid. That means there is a rebuttable presumption that there was a valid underlying transaction. Therefore. as a matter of law, the paper presented is not just facially valid but also presumptive evidence that the transaction existed. This gets tricky in application and is one of the many reasons why lawyers should study up on courtroom procedures, evidence and objections.

On the note, the underlying transaction is the debt. The debt exists not because of the note, but because Party A put money into the hands of Party B who accepted it. The debt arises regardless of whether or not a note was executed. The note is evidence of the debt and it is presumptive evidence that there was an underlying transaction in the amount of the note. The underlying transaction is therefore the payee putting money into the hands of the homeowner, who is the payor.

On the mortgage, the underlying transaction is still the debt and the existence of the note, because a valid mortgage does not exist except if it is based upon an instrument in writing. The mortgage is not presumptive evidence of the existence of the underlying transaction (the actual loan of money from Party A to Party B). Under normal circumstances the existence of a properly executed mortgage would corroborate the evidence supplied by the note.

On the assignment, the underlying transaction is a payment of money from Assignee to the Assignor. The assignment itself might be accepted by the court as presumptive evidence that such an underlying transaction exists (in the absence of an objection). If a proper objection is raised, the presumption vanishes.

So what is a proper objection under these circumstances? Remember if you fail to raise the objection then the burden of proving the transaction did not happen falls on the homeowner. The objective here is to hold the bank’s feet to the fire and make them prove their case. And the reason for this is not to exercise your vocal chords. It is to show that the underlying transaction between the parties stated in the document proffered by the bank never took place. And the reason you are doing that is because those transactions in fact, never occurred.

The hearsay rule is an appropriate objection because the document is being used to establish the truth of the matter implied — i.e., that there was an underlying transaction. But the better objection,in my opinion, is that the existence of the underlying transaction be subject to (1) lack of foundation and (2) best evidence. They are related in this instance.

Under the rules of evidence, the note, mortgage and assignment are secondary documents that imply that a transaction took place but do not show facts to verify that the transaction actually occurred. Hence, the BEST EVIDENCE of the underlying transaction is the canceled check or wire transfer receipt showing the payment and implied acceptance of the money used to fund the loan or purchase the mortgage. Anything less than that is not admissible evidence — unless the objection is overlooked or waived. It would therefore be true that the debt from the homeowner allegedly owed to the payee on the note (and mortgage) or the assignee on the assignment is not supported by foundation in the usual circumstances.

Special note here: I have seen in reported cases that it DOES occur that litigants, including banks, have doctored up copies of wire transfer receipts. Thus any effort to introduce the copy would be met by your objection on the basis of best evidence and the argument, if applicable, that the failure to disclose the document prior to trial deprived you of your ability to confirm the authenticity of the document. Verification is possible but he banks, Federal reserve etc., will not make it easy on you so a court order will be helpful.

Normally the corporate representative of the servicer is the witness. It will usually be established on voir dire or cross examination that the witness neither had access to nor ever personally viewed any records of the actual transaction and in fact never even saw the secondary evidence (the note, mortgage and assignment) until a few days before trial. Thus no testimony will be elicited, in the ordinary course of things, that the transaction took place (i.e., an ACTUAL transaction in which money from the payee was loaned to the homeowner or money from the Assignee was paid to the Assignor). Hence no foundation exists for any testimony or any document that the debt exists or that the loan was actually sold for consideration and then assigned.

This is not a technical matter. If I agree to pay you $100 for your toaster oven, I can’t demand the appliance until I have paid it. If that was the agreement, then the underlying transaction is the payment of money. The evidence — the best evidence — of the payment is a canceled check or wire transfer receipt. The exceptions to the best evidence rule do not seem to apply and there is no adequate explanation for why anything other than direct primary evidence of the transaction itself should be admitted.

In searching the internet I found that a lawyer in West palm beach wrote a pretty good article on the subject although he was concentrating on the use of the best evidence rule in connection with duplicates. see for the article by Mark R. Osherow, Esq.

Here are some excerpts from that article.


The best evidence rule, set forth in Fla. R. Evid.’90.952 and Fed. Rules Evid. 1001, provides that, where a writing is offered in evidence, a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original. Fla. R. Evid. ‘90.9520-90.958; Fed. Rules Evid. 1002-1008….
Public records authentication is provided for by section 90.955 and Rule 1005. Under section 90.956 and Rule 1006 voluminous writings, recordings, or photographs which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation. Of course, admissibility of a summary depends upon the admissibility of the underlying documents. In order to use a summary, timely written notice is required with proof filed in court. Adverse parties must have sufficient time to investigate and inspect underlying records and summaries….
Fla. R. Evid. Section 90.957. Section 90.958 and Rule 1008 set forth the situations where the court determines admissibility and where the jury determines factual issues such as the existence of a document, its content, and the contents accuracy.
The best evidence rule arose during the days when a copy was usually made by a clerk or, worse, a party to the lawsuit. Courts generally assumed that, if the original was not produced, there was a good chance of either a scrivener’s error or fraud.
… there is always a danger of a party questioning a document, so it is important to remember that, unless you have a stipulation to the contrary, or your document fits one of the exceptions listed in the statute, you must be ready to produce originals of any documents involved in your case or to produce evidence of why you cannot.

9 Responses

  1. […] 14, 2014Of all of the rules required for court, the least known throughout the legal industry are those contained within the Rules of Evidence. […]

  2. We met the Burden of Proof and had a Preponderance of Evidence proving there was Fraud at Origination and No Legal Contract. The Bank did not and could not prove they had s legal right to collect on this INVALID LOAN. They also could not prove they followed the law. CH. 244 sec. 14 which is required for a Legal Foreclosure. Our Judge was UNETHICAL and ignored the Rules of Law. We would later find out that he had a CONFLICT OF INTEREST! His wife was an attorney who was the head of the legal department for one of the big banks accused of ILLEGAL FORECLOSURES! I will not give up until these BANKSTERS, LAWYERS & JUDGES are JAILED!

  3. @SoCal7 – good tips. As a pro se I requested production of common business records depicting the sale and purchase of the subject loan and transmittal documents of the note or bailment in it stead. Then I asked the court for a statement of decision by the trial court of the fact used to determine the amount paid for the note after the court denied my motions to compel discovery of the above. This is sitting in CA 1st Dist App with oral arguments scheduled for June 6.

    The Appellate denied my request for a copy of the draft decision before arguments, but presented the issue of whether an agent of a principal who claimed no agency was authorized to have their agent have their agent file a notice of default with there being no evidence of written instructions or ratification among the ‘agents’ in the record.

    Why the CA Supreme Court would countenance such behavior from a lower court is incomprehensible.

  4. another misstatement of basic law that a 2nd year law student would get. come one Neil, who’s writing your stuff now?

  5. @ louise: agreed…. Money talks, BS walks!!

  6. Neil is right, but another mechanism is to demand production of IRS Form 1066…if your DOT/MTG/Note was “assigned” to a REMIC Trust. This form and filing will show that the “Trust” never got your DOT/MTG/Note or if they did, they paid 100% tax on it. Demand the all Schedules and appendixes, too. “J” and “Q” for sure…but all of them.

    Then also demand a copy of the “Bailee Letter”. This is a letter that a “custodian” or “bailee” or “agent” must draft to accompany any transfer. Of course it never happened, so they cannot produce it. Plead industry practice(s).

    Go heavy on NY or DEL State law governing REMIC trusts and void (not voidable) transactions. This will set the TBTF’s (and their non-bank assignees) on their heels.

  7. My personal experience is that the court does not want evidence of much of anything. It is all rigged.

  8. Anyone- how about ‘best evidence’ rules regarding copies in Pennsylvania? Awfully hard to navigate the PA Code in a timely manner.

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