Thursday, January 29, 2015

FYI: Fla App Ct (4th DCA) Reverses Dismissal of Foreclosure Based on Missing Original Note

The District Court of Appeals of the State of Florida, Fourth District, recently reversed the involuntary dismissal of a bank’s mortgage foreclosure action before the bank finished presenting its evidence at trial, remanding the case for a new trial.


A copy of the opinion is available at:


The bank filed the original promissory note prior to trial, but at trial the parties discovered that it was missing from the court file. The bank tried to introduce a copy into evidence, but the borrowers objected on the basis of the “best evidence” rule. The trial court summarily granted the motion without allowing the bank to present any further evidence.


Shortly thereafter, the clerk of court found the original note and mailed it back to the bank, which then moved for rehearing or a new trial. The trial court denied the motion and entered final judgment for the borrowers.


On appeal, the Appellate Court analyzed the text of Florida Rule of Civil Procedure 1.420(b), which governs involuntary dismissal in bench trials, pointing out that Florida courts have interpreted the rule as preventing a trial court from involuntarily dismissing a case before the plaintiff rests it case.


Because the bank had just begun presenting its case in chief when the trial judge noticed the original note was missing from the court file and dismissed the case, the Appellate Court held that the bank was denied the opportunity to complete the presentation of its evidence as required by the rule.


The Appellate Court also held that the trial court committed error by granting the borrowers’ motion for involuntary dismissal, and should have granted the bank’s motion for new trial.





Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
(312) 551-9320
(312) 284-4751
(312) 493-0874


Admitted to practice law in Illinois



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