GREEN TREE SERVICING, LLC N/K/A DITECH FINANCIAL, LLC, Appellant,
DAVID G. ATCHISON, HARBOUR/PONCE HOLDINGS, LLC, DEBBIE KAY HUDSON, LINKS SOUTH AT HARBOUR VILLAGE CONDOMINIUM ASSOCIATION, INC., ET AL., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Dennis Craig,
Preston Davis, of Padgett Law Group, Tallahassee, for
J. Webster, of Daniel J. Webster, P.A., Daytona Beach, for
Appellees, Harbour/Ponce Holdings, LLC, Palm View of Ponce
Inlet, LLC, The Links South at Harbour Village Condominium
Association, Inc. and Harbour Village Golf & Yacht Club
Community Services Association, Inc.
Appearance for other Appellees.
challenges the final judgment dismissing its mortgage
foreclosure action with prejudice after trial. Appellant
argues that two erroneous evidentiary rulings made by the
trial court excluding certain evidence at trial requires that
we reverse the final judgment and remand for a new trial.
Because we conclude that any error committed by the trial
court did not constitute harmful error, we affirm.
did not file the initial mortgage foreclosure complaint.
Almost six years after the original complaint was filed,
Appellant was granted leave by the trial court to be
substituted as the party plaintiff and to file a two-count
amended complaint to foreclose on the subject mortgage and to
re-establish the lost promissory note. The case proceeded to
trial on Appellant's amended complaint. Because Appellees
raised a defense of lack of standing, Appellant had the
burden at trial to establish that it had standing to
foreclose at the time of trial and that the original
plaintiff had standing at the time the foreclosure complaint
was filed. See Russell v. Aurora Loan Servs., LLC,
163 So.3d 639, 642 (Fla. 2d DCA 2015) (quoting Kiefert v.
Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA
effort to establish the standing of the original plaintiff,
Appellant attempted to admit into evidence an assignment of
the mortgage from the lender to the initial plaintiff. The
trial court excluded this evidence, concluding that it was
not trustworthy and was inadmissible under the business
records exception to the hearsay rule codified at section
90.803(6), Florida Statutes (2016). In its first argument on
appeal, Appellant contends that the trial court erred in
ruling that the assignment of mortgage was inadmissible under
section 90.803(6) because the mortgage assignment was
separately admissible as a verbal act. See Holt v.
Calchas, LLC, 155 So.3d 499, 502 n.2 (Fla. 4th DCA 2015)
(concluding that an assignment of mortgage is admissible into
evidence as a verbal act irrespective of the business record
exception to the hearsay rule); Deutsche Bank Nat'l
Tr. Co. v. Alaqua Prop., 190 So.3d 662, 665 (Fla. 5th
DCA 2016) (holding that a promissory note does not have to
qualify as a business record under the business record
exception to the hearsay rule and is admissible for its
independent legal significance-to establish the existence of
the contractual relationship and the rights and obligations
of the parties to the note, regardless of the truth of any
assertions made in the document). We agree with Appellant
that the trial court erred in failing to admit into evidence
the assignment of mortgage as that would have assisted
Appellant in establishing standing at the inception of the
suit. However, Appellant was still required to establish
standing at the time of trial.
other argument for reversal is that the trial court erred in
precluding Appellant's witness from testifying about
Appellant's general policies and procedures concerning
lost instruments. Notably, Appellant does not contend that at
some point, it had possession of the original note and then
lost it. Rather, the note was ostensibly lost by a
predecessor holder. Having reviewed the witness's
testimony, as well as his proffered testimony, we find that
the testimony, if admitted into evidence, would not have been
sufficient to re-establish the lost note. Accordingly, even
if the trial court erred in its two challenged rulings,
"an error in an evidentiary ruling does not necessarily
constitute harmful error." Wells Fargo Bank, N.A. v.
Ousley, 212 So.3d 1056, 1058 (Fla. 1st DCA 2016).
Appellant has not shown harmful error. The final judgment is
CJ, PALMER and LAMBERT, JJ, concur