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Wells Fargo Bank, N.A. v. Eisenberg

Florida Court of Appeals, Fourth District

May 31, 2017

WELLS FARGO BANK, N.A., Appellant,
v.
MARA ELIZABETH EISENBERG a/k/a MARA E. EISENBERG, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Lisa S. Small, Judge; L.T. Case No. 502013CA018761.

          Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.

          Anthony E. Saurini of The Ticktin Law Group, PLLC, Deerfield Beach, for appellee Mara Elizabeth Eisenberg.

          Klingensmith, J.

         Appellant Wells Fargo Bank, N.A. ("Bank") appeals the involuntary dismissal of its foreclosure case against appellee Mara Elizabeth Eisenberg ("Borrower"). The trial court based the dismissal on Bank's failure to adequately prove damages. Bank alleges two grounds for reversal: 1) that the trial court erred by preventing Bank from admitting into evidence the portion of the loan payment history initially generated by the first servicer, which Bank incorporated into its own business records; and 2) that the court's involuntary dismissal was improper since Bank prima facie established the amounts due and owing, even though the portion of the payment history showing the date on which Borrower was alleged to have initially defaulted was not admitted into evidence. We agree on both issues, and reverse and remand for further proceedings.

         Bank filed a mortgage foreclosure complaint against Borrower, alleging that "the payment due for December 1, 2008 and all subsequent payments have not been made." The complaint claimed that the "principal sum of $101, 098.78" along with other expenses were due and owing.

         Borrower's loan was initially serviced by First Union Mortgage Corporation, which later merged into Wachovia; subsequently, Wachovia merged into Bank. At trial, Bank called a loan verification analyst to testify that Bank was the servicer of Borrower's loan, and that she had become familiar with Bank's "policies and procedures related to the preparation and maintenance of business records" during her career with Bank. Although she had not worked for Wachovia, she was familiar with its recordkeeping procedures; however, she was not familiar with First Union's procedures.

         When Bank attempted to admit Borrower's complete payment history into evidence, Borrower's counsel objected due to the witness's insufficient knowledge of the policies and procedures of First Union and Wachovia. The court sustained the objection, but allowed further questioning to elucidate the witness's knowledge of Bank's boarding process. After the witness did so, Borrower stood by her prior objection, contending that the payment history should be excluded because the witness could not attest to the policies and procedures of the initial servicer. The court agreed and sustained Borrower's objection for failing to lay a proper foundation in terms of the witness's knowledge of how First Union created its records while it was the servicer of the loan.

         Once Bank's merger document with Wachovia was admitted as evidence, Bank entered into evidence without objection the payment history starting from Wachovia's servicing of the loan (beginning in March 2010) onward. Bank also entered into evidence without objection a payoff screenshot from its records showing all the amounts due and owing, including the principal balance that Bank alleged Borrower owed in the foreclosure complaint ($101, 098.78), the escrow advance, accrued interest, and per diem interest. The screenshot also specified that this principal amount was originally due on December 1, 2008.

         Borrower moved for involuntary dismissal, arguing that Bank failed to prove standing and did not present competent evidence of the amount owed on the note. Borrower argued that the accuracy of the payment history could not be ensured because the first default date alleged in the complaint was for December 2008, but the admitted payment history began in March 2010. Bank countered that that there was sufficient evidence of the amounts due and owing, but alternatively suggested that, to the extent the court believed it was necessary to have the payment history reach the initial default date, it was willing to reduce the amount it was seeking to only those sums reflected in the payment history in evidence (i.e., from March 2010).

         The trial court denied involuntary dismissal on the standing issue, but granted it for failure to prove the amounts due and owing. It ruled that Bank "failed to demonstrate by substantial competent evidence the amount due and owing" because of an "an incomplete payment history." The court further stated that there was "no definitive date that was testified to in terms of when the actual default occurred." After Bank's motion for rehearing was denied, this appeal followed.

         The Prior Loan History

         "The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence." Ocwen Loan Servicing, LLC v. Gundersen, 204 So.3d 530, 533 (Fla. 4th DCA 2016) (quoting Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009)). "[T]he question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject ...


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