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Harrington v. Roundpoint Mortgage Servicing Corp.

United States District Court, M.D. Florida, Fort Myers Division

April 10, 2017


          OPINION AND ORDER [1]


         This matter comes before the Court on review of Plaintiff Larry Harrington's Motion to Strike (Doc. 119) filed on January 23, 2017. Defendants RoundPoint Mortgage Servicing Corporation (“RoundPoint”) and Multibank 2010-1 SFR Venture, LLC (“Multibank”) filed their Response in Opposition (Doc. 126) on February 6, 2017. The Court has also reviewed the Defendants' Motion to Strike (Doc. 129) filed on February 13, 2017 and Harrington's Response in Opposition (Doc. 136) filed on February 27, 2017. Finally, the Court has reviewed Defendants' Supplemental Motion to Strike (Doc. 137), filed on March 6, 2017, to which Harrington Responded in Opposition (Doc. 138) on March 20, 2017.[2] These matters are ripe for review.


         This case involves allegations that Defendants violated federal and state statutes by attempting to collect a debt through repeated automatically-dialed telephone calls without first obtaining consent to do so from the debtor. On January 9, 2017 the Defendants moved for Summary Judgment against Harrington. (Doc. 111). Harrington Responded in Opposition. (Doc. 120). The instant dispute relates to dueling motions to strike filed by the parties.


         A. Harrington's Motion to Strike

         1. The Propriety of the Hughes Affidavit

         Harrington first argues that the entire affidavit of David Hughes (“Hughes Affidavit”) (Doc. 111-2), should be stricken as a sanction for Defendants' presentation of loan history records (“Loan History”) (Doc. 111-6) that he argues have been altered. Generally, motions to strike are governed by Federal Rule of Civil Procedure 12(f), which states that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.” Fed.R.Civ.P. 12(f). Even so, Federal Rule of Civil Procedure 12(f) only gives the Court authority to strike pleadings. Id. (emphasis added).

         Federal Rule of Civil Procedure 7(a) states that “pleadings” consist of complaints, answers to a complaint, answers to a counterclaim, answers to a crossclaim, third-party complaints, and replies to an answer. See Fed.R.Civ.P. 7(a). Courts across the Eleventh Circuit have held that motions filed under Rule 12(f) that ask the Court to strike documents other than pleadings are improper. See Kahama VI, LLC v. HJH, LLC, No. 8:11-CV-2029-T-30TBM, 2014 WL 3721298, at *1 (M.D. Fla. July 28, 2014); see also Santana v. RCSH Operations, LLC, 10-61376-CIV, 2011 WL 690174, at *1 (S.D. Fla. Feb.18, 2011); Croom v. Balkwall, 672 F.Supp.2d 1280, 1285 (M.D. Fla. 2009).

         Harrington argues that Defendants presented the Loan History in altered form because a reference denoting the account as a “skip account” was absent from the November 1, 2010 entry on page two (2) of the record. (Doc. 111-6 at 2). As proof, Harrington presents what his attorney, Chris R. Miltenberger declares is a true and correct copy of the Defendants' Loan History. (Doc. 119-1 at 4). In the November 1, 2010 cell, Harrington's copy states “THIS IS NOW A SKIP ACCOUNT.” (Doc. 119-1 at 4).

         Defendants argue that the version of the Loan History they filed was not altered, but that certain information was omitted because the original format of the document - Microsoft Excel - innocently cut off a portion of the text when the document was prepared for filing. Moreover, Defendants argue that even had the full language been produced, Harrington's emphasis on the words “skip account” are misleading, because it does not mean the account was skip traced, but rather that the account was eligible for skip tracing. Finally, Defendants argue that they did not produce the Loan History that Harrington filed, and conclude that it was likely produced by RoundPoint in unrelated litigation because it was filed with the Court in PDF format.

         First, it is unclear whether Harrington's version of the Loan History comes from unrelated litigation. Defendants vehemently contend that RoundPoint maintains its business records in original Excel format, and not PDF format. From this they conclude because Harrington presented the Loan History in PDF format, the records must have come from unrelated litigation. But in the same breath, Defendants maintain that they produced a copy of the original Excel record through discovery. (Doc. 126 at 6). It is ambiguous whether Defendants mean they produced the Loan History in Excel form, or merely that they produced the records to Harrington. If the copies were presented to Harrington in Excel form, it is not a far inferential leap to conclude that Harrington could explore the full contents of the cells and to format the document to reveal the entirety of their extent.

         On alteration, it is notable that Harrington does not contend that Defendants altered the contents of the Loan history record, but rather that the format simply does not present the entirety of each cell. The word “alter” invokes the idea that the document had been changed. But while the formatting of the Loan History presented by Harrington is different because the cell size has been modified, the Court sees no evidence to show that the substantive contents of Defendants' version were changed.

         The Court is also not convinced that Defendants' omission prejudiced Harrington. A skip account is one in which a borrower “defaults on a loan and skips out on repayment by moving without providing a correct forwarding address.”[3] But the designation as a “skip account” does not conclusively indicate that the Harringtons were skip traced. This can be most readily discerned by observing that the entry regarding the “skip account” was inputted for November 1, 2010, and contrasting it with the fact that the number at the center of this case (the “5307 Number”) was not inputted to Defendants computer database until November 30, 2010. (Doc. 111-7 at 3, 119-1 at 4).

         Finally, even if the Court found that the Loan History was altered by the Defendants, Harrington has provided no reasoning for why the Hughes Affidavit should be stricken. The Hughes Affidavit serves as a linking document for evidence supporting many of Defendants' summary judgment arguments. Striking it as a sanction would be grossly disproportionate to any prejudice, if any, that Harrington has incurred through Defendant's introduction of evidence.

         2. Authentication of Exhibits A-4 and A-5

         Harrington next argues that Defendants Loan History (Doc. 111-6) and mortgage servicing platform history (“MSP History”) (Doc. 111-7) should be stricken because neither document has been authenticated. As a starting point, both documents are plainly hearsay. Hearsay is a statement that the declarant does not make while testifying in trial or at a hearing and that is offered in evidence to prove the truth of the matter asserted in the statement. SeeFed. R. Evid. 801(c). Hearsay is not admissible unless provided otherwise by a federal statute, the federal rules of evidence or other rules prescribed by the Supreme Court. See Fed. R. Evid. 802. When an affidavit submitted in support of, or opposition to, a motion for summary judgment contains inadmissible evidence, the court may strike the inadmissible portions of the affidavit and consider the rest. See Story v. Sunshine Foliage World, Inc., 120 F.Supp.2d 1027, 1031 (M.D. Fla. 2000). In consideration of this rule, Defendants attempt to offer the documents under the business records exception to the hearsay rule, under Rule 803(6). To be admissible as a business record, evidence must satisfy the elements of both Rule 803(6) and be authenticated under Rule 901 or 902. United States v. Dreer, 740 F.2d 18, 20 (11th Cir. 1984). Rule 803(6) states, in pertinent part, that

[a] record of an act, event, condition, opinion, or diagnosis [is admissible] if: (A) the records was made at or near the time by-or from information transmitted by-someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Fed. R. Evid. 803(6); see also PNC Bank, Nat. Ass'n v. Orchid Grp. Investments, L.L.C., 36 F.Supp.3d 1294, 1301 (M.D. Fla. 2014); United States v. Arias-Izquierdo, 449 F.3d 1168, 1183 (11th Cir.2006) (“The touchstone of admissibility under Rule 803(6) is reliability, and a trial judge has broad discretion to determine the admissibility of such evidence.”). A business record is self-authenticating when it is “supported by testimony of a custodian or other qualified witness, or by certification that complies with Fed.R.Evid. 902(11).” See McCaskill v. Ray, 279 F.App'x 913, 914 (11th Cir. 2008) (internal punctuation omitted).

         Here, Defendants presented both documents along with the Hughes Affidavit, which states that the records were made at or near the time the events they concerned occurred, by either someone with knowledge or from information transmitted by someone with knowledge. (Doc. 111-2 at ¶ 3). Moreover, it states that the records were kept in the ordinary course of RoundPoint's regularly conducted business activities and that it was RoundPoint's regular practice to maintain such records. (Doc. 111-2 at 3). Finally, the Hughes Affidavit states he has personal knowledge of RoundPoint's procedures for creating and maintaining records. (Doc. 111-2 at 3). Notably, “[i]t is not necessary that the corporate representative have direct, personal knowledge of each and every fact discussed in her affidavit or deposition.” Atl. Marine Fla., LLC v. Evanston Ins. Co., No. 3:08-CV-538-J-20TEM, 2010 WL 1930977, at *2 (M.D. Fla. May 13, 2010); see also In re Nat'l Trust Grp., Inc., 98 B.R. 90, 92 (Bankr. M.D. Fla. 1989) (“Since the witness need not be the person who actually prepared the record, a qualified witness is . . . one who can explain and be cross-examined concerning the manner in which the records are made and kept.”) (internal punctuation omitted). As such, the Hughes Affidavit unequivocally satisfies subsections (A)-(D) of Rule 803(6) as pertains to Defendant's Loan History and MSP History.

         To the extent Harrington argues that the Defendants MSP Records are inadmissible because they were prepared in anticipation of litigation, the Court finds that argument unsupported. The Eleventh Circuit has held that computer generated business records are admissible under the following circumstances “(1) [t]he records must be kept pursuant to some routine procedure designed to assure their accuracy, (2) they must be created for motives that would tend to assure accuracy . . . and (3) they must not themselves be mere accumulations of hearsay or uninformed opinion.” United States v. Warner, 638 F.App'x 961, 963-64 (11th Cir.), cert. denied, 137 S.Ct. 178, 196 L.Ed.2d 147 (2016). There is no indication those standards have not been met here.

         First, it appears that the MSP History merely lists the phone numbers possessed by RoundPoint for the Harringtons during each day, which is plainly a routine procedure designed to assure accuracy. Second, contrary to Harrington's assertion that the document was created in anticipation of litigation, nothing in the report indicates that the document was created for that purpose. Even if this information is only a subset of the entire data collected by the Defendants for the Harringtons, the Eleventh Circuit has held that the admission of spreadsheets formatted to be easy to understand and printed for litigation are acceptable business record substitutes, so long as “the underlying records were kept in the ordinary course of business and the data was not modified or combined when entered.” Warner, 638 F.App'x at 964. On the third threshold, there is no indication that the MSP History contains “mere accumulations of hearsay or uninformed opinion.” See id.

         The final question for both documents under Rule 803, then, is whether evidence indicates a lack of trustworthiness. Fed.R.Evid. 803(6)(E). While Harrington raises no argument on these grounds for the MSP History, he contends that the Loan History is untrustworthy because it was altered by the Defendants. But that argument does not touch on trustworthiness, and instead goes to the credibility of the information presented. See Equity Lifestyle Properties, Inc. v. Florida Mowing And Landscape Serv., Inc., 556 F.3d 1232, 1244 (11th Cir. 2009) (citing United States v. Garnett, 122 F.3d 1016, 1019 (11th Cir.1997). Credibility is a question of weight for the trier of fact, and is not grounds for striking the Loan History here. See id.

         With these factors in mind, the documents plainly meet the business records exception to hearsay under Federal Rule of Evidence 803(6). But to be admitted, they must also be authenticated. The admission of business records requires the court to conclude that they satisfy both Rule 803(6) and 901, but a record introduced through a qualifying affidavit is self-authenticating under Rule 902(11). See United States v. Lezcano, 296 F.App'x 800, 807 (11th Cir. 2008). Because the Loan History and MSP History were produced by the Defendants, and because Hughes swears that Defendants authorized him to sign the affidavit, Rule 902(11) is satisfied and they are admissible.

         3. Paragraph Six of the Hughes Affidavit

         Harrington next argues that the Court should strike paragraph six of the Hughes Affidavit because Hughes lacks personal knowledge to make the statement. Paragraph six states that “[i]n connection with their Loan application, the Harringtons executed a Construction Agreement.” (Doc. 111-2 at ¶ 6).

         Federal Rule of Civil Procedure 56(c)(4) states that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Harrington argues that Hughes has no personal knowledge of why or how the Construction Agreement was executed, and therefore he is not qualified to testify about the subject. The Court agrees.

         Though Defendants have both the Note and the Construction Agreement, and even though the two documents identify similar amounts - the Note obligates the Harringtons to repay Riverside Bank of the Gulf Coast (“Riverside”) $297, 100.00 in loaned money while the Construction Agreement obligates the Harringtons to pay Oyster Bay Homes, Inc. (“Oyster Bay”) $297, 052.36 - neither of the Defendants possesses personal knowledge of the Harringtons' dealings with their builder, Oyster Bay (Docs. 111-5, 111-3). Paragraph six of the Hughes Affidavit will therefore be stricken from the record.

         4. Paragraph Seven of the Hughes Affidavit

         Harrington next argues that paragraph seven of the Hughes Affidavit should be stricken because it violates the best evidence rule. Paragraph seven states that “[t]he Construction Agreement sets forth the funds the Harringtons will receive from their lender for construction of their home on the Property.” (Doc. 111-2 at ¶ 7). “Although the phrase ‘Best Evidence Rule' is frequently used in general terms, the ‘Rule' itself is applicable only to the proof of the contents of a writing.” United States v. Duffy, 454 F.2d 809, 811 (5th Cir. 1972).[4] Defendants are not trying to prove the contents of the Construction Agreement through their affidavit, but rather to characterize a portion of its function. The best evidence rule is inapposite here.

         However, like paragraph six, Defendants lacked personal knowledge to set forth facts regarding the Construction Agreement. For the same reasons set forth regarding paragraph six, the entirety of paragraph seven will be stricken under the Court's inherent power.

         5. Paragraph Fourteen of the Hughes Affidavit

         Harrington next argues that paragraph 14 of the Hughes Affidavit should be stricken because it is hearsay, because Hughes lacks the personal knowledge to make a statement on the record, and because Hughes's testimony is not supported by evidence. Paragraph 14 states “RoundPoint's purpose in calling the Harringtons was to determine the reasons for the delinquency on their account, to discuss repayment options to bring the loan current, to discuss alternatives to foreclosure, to comply with rules, regulations and investor guidelines and to assess risks to Multibank's collateral (e.g. insurance and whether the home was currently occupied).” Harrington's hearsay argument is meritless. It is generally accepted that inadmissible hearsay in an affidavit cannot be considered in summary judgment challenges. See Macuba v. DeBoer, 193 F.3d 1316, 1322 (11th Cir.1999). But while Hughes expounds on RoundPoint's purposes in calling the 5307 Number in paragraph 14, at no point does he make a statement that constitutes inadmissible hearsay.

         Harrington's argument regarding personal knowledge fairs no better. As stated above, a corporate representative need not have direct, personal knowledge of each and every fact in their affidavit. See Atl. Marine Fla., LLC, 2010 WL 1930977, at *2. Moreover, “[w]hen a corporation offers testimony of a representative, the corporation appears vicariously through that agent. The authority of a corporate representative extends not only to facts, but also to the subjective beliefs and opinions of the corporation.” Id.; see also Stalley v. ADS All. Data Sys., Inc., No. 8:11-CV-1652-T-33TBM, 2014 WL 129069, at *3 (M.D. Fla. Jan. 14, 2014). With this in mind, Hughes did not need to be independently aware of the matters in the affidavit, as his statements are on behalf of the Defendants. Id. Paragraph 14 of the Hughes Affidavit is not insufficient for lack of personal knowledge.

         Finally, Harrington's argument that paragraph 14 should be stricken because it is unsupported by evidence is also inadequate. Simply because the Loan History lists the purpose of some calls as “collection” does not leave the statement unsupported. In practice, collection is not mutually exclusive with an interest in the successful negotiation of options to bring the loan current, or to the ...

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