final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Lisa S. Small, Judge; L.T. Case No.
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.
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.
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.
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
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.
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.
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
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.
Prior Loan History
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