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Evans v. HSBC Bank, USA, National Association

Florida Court of Appeals, Second District

May 5, 2017

ANDREA S. EVANS, Appellant,
v.
HSBC BANK, USA, NATIONAL ASSOCIATION; ASSOCIATION OF POINCIANA VILLAGES INCORPORATED; POINCIANA VILLAGE SEVEN ASSOCIATION, INCORPORATED; AINSLEY JONES; UNKNOWN TENANT(S) IN POSSESSION OF THE SUBJECT PROPERTY, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Polk County; Cecelia M. Wilhite, Senior Judge.

          Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.

          Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for Appellee HSBC Bank, USA, N.A.

          No appearance for remaining Appellees.

          LaROSE, Judge.

         Andrea S. Evans appeals the final judgment of foreclosure entered in favor of HSBC Bank, USA, National Association (HSBC Bank), and the dismissal of her counterclaim. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Ms. Evans raises five issues on appeal.[1] The parties agree that we should reverse and remand as to two issues: (1) the trial evidence was legally insufficient to establish the amount owed by Ms. Evans on her home loan; and, (2) the trial court erred in dismissing with prejudice Ms. Evans' counterclaim for trespass. We reverse and remand for further proceedings on these two issues. We affirm the final judgment in all other respects without further comment.

         As to the first issue noted, above, the parties disagree as to the proper relief that the trial court should afford on remand. Ms. Evans contends that because HSBC Bank failed to prove damages, we should direct the trial court to dismiss the case. HSBC Bank, on the other hand, argues that the trial court should conduct further proceedings to determine the amount of the debt owed. As explained below, we agree with HSBC Bank on this point.

         Background

         In 2006, Ms. Evans financed the purchase of a home by executing a promissory note and mortgage in favor of HSBC Mortgage Corporation. HSBC Mortgage endorsed the note in blank. Following Ms. Evans' 2009 payment default, HSBC Bank, as the noteholder and mortgage servicer, sued to foreclose. Ms. Evans answered the complaint, raising several affirmative defenses, and a trespass counterclaim. The trial court dismissed the counterclaim, finding that the allegations lacked particularity.[2]

         At a 2014 bench trial, HSBC Bank offered the testimony of Angela Stubblefield, from PHH Mortgage Corporation, a loan subservicer for HSBC Bank. Her knowledge of the loan came from reviewing HSBC Bank's records. Through Ms. Stubblefield's testimony, HSBC Bank sought to admit a payment history into evidence. The payment history was based on records from three different servicers.

         Ms. Stubblefield confirmed that PHH created little of the twenty-five-page payment history. In fact, an entity named "The Mortgage Service Center" created a significant portion. Ms. Stubblefield insisted that the entire payment history was a business record "because they were transferred over to . . . PHH." Yet, she could only surmise that the payment history entries were "made by an individual with the responsibility to enter data accurately and contemporaneously with the events recorded." Ms. Stubblefield was unable to testify as to the procedures used to "board" the entries into PHH's records. Over Ms. Evans' objections, the trial court admitted the payment history into evidence. Ms. Stubblefield then testified that the damages reflected in the proposed judgment were accurate. HSBC Bank neither offered nor admitted the proposed judgment into evidence. The trial court entered a final judgment in favor of HSBC Bank.

         Analysis

         I. The Payment History as ...


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