ANDREA S. EVANS, Appellant,
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.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Cecelia M. Wilhite,
Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.
David Newman, Jr. of Choice Legal Group, P.A., Fort
Lauderdale, for Appellee HSBC Bank, USA, N.A.
appearance for remaining Appellees.
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. 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.
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.
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
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.
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.
The Payment History as ...