Fair v. Kaufman
| Decision Date | 17 June 1994 |
| Docket Number | No. 93-01426,93-01426 |
| Citation | 647 So.2d 167 |
| Parties | 19 Fla. L. Weekly D1325 Donna L. FAIR, f/k/a Donna L. Drake, Appellant, v. Sean KAUFMAN and Barbara Kaufman, Appellees. |
| Court | Florida District Court of Appeals |
Walter E. Smith of Meros, Smith & Olney, P.A., St. Petersburg, for appellant.
Iris G. Hernandez of Spear and Hoffman, Coral Gables, for appellees.
Donna L. Fair, f/k/a Donna L. Drake, appeals the trial court's final judgment of foreclosure. We remand this case to the circuit court because the appellees, Sean and Barbara Kaufman, failed to introduce at trial the original note and mortgage.
On February 24, 1989, State Equity Investment Corporation filed a complaint to foreclose a mortgage against Donna Fair. The complaint alleged Mrs. Fair executed and delivered a note and mortgage on September 3, 1986, and further alleged she defaulted under the note and mortgage. Appellant answered and counterclaimed seeking reformation and/or rescission of the contract. On April 20, 1992, a motion to substitute the Kaufmans as the plaintiffs was filed, and the trial court entered an order of substitution.
The case proceeded to trial on August 20, 1992 and December 4, 1992. At the conclusion of all of the evidence, the court requested written memoranda from the parties. A final judgment of foreclosure was entered in favor of the Kaufmans on March 30, 1993. On appeal appellant argues, inter alia, the final judgment of foreclosure must be reversed because the appellees did not introduce into evidence the original note and mortgage. We agree and reverse.
In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so. W.H. Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla.1955). The record in this case does not indicate the original documents were offered and/or received into evidence. The appellees argue the original note and mortgage were filed and placed into evidence at the summary judgment hearing. This is not sufficient. The introduction of such documents at a summary judgment proceeding does not obviate the necessity for proper introduction at trial. Cf. R.L. Bernardo & Sons, Inc. v. Duncan, 145 So.2d 476 (Fla.1962).
The failure to introduce those original documents precludes the entry of a final judgment. On remand the trial court may again enter a final judgment of foreclosure upon...
To continue reading
Request your trial
-
Neal v. State
...it into evidence for consideration of its content, and holding that pleadings are not themselves evidence); see also Fair v. Kaufman, 647 So.2d 167 (Fla. 2d DCA 1994). 2 Even if the prosecutor had made his statement in testimony under oath, reporting facts developed by a third party, or if ......
-
Dickerson v. Regions Bank
...a mortgage or deed of trust must be produced and introduced into evidence. 58A C.J.S. Mortgages § 991 (2014); Fair v. Kaufman, 647 So.2d 167, 168 (Fla.2d Dist. Ct. App. 1994) (holding that to prevail in a foreclosure action the original note and mortgage must be introduced into evidence); R......
-
Deutsche Bank Nat'l Trust Co. v. Clarke
...in Perry, hewing closely to the language of section 90.953, is persuasive. Perry appears to conflict with language in Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994). There the second district made this statement of law: In order to prevail in a suit on a note and mortgage, the origi......
-
Colson v. State Farm Bank, F.S.B., 2D13–5526.
...note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so." Fair v. Kaufman, 647 So.2d 167, 168 (Fla. 2d DCA 1994) (citing W.H. Downing v. First Nat'l Bank of Lake City, 81 So.2d 486, 488 (Fla.1955) ). "Because a promissory note is a nego......