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Deutsche Bank National Trust Co. v. Sheward

Florida Court of Appeals, Second District

April 18, 2018

DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellant,
v.
DWAINE A. SHEWARD and PATRICIA SHEWARD, Appellees.

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

          Appeal from the Circuit Court for Pinellas County; David A. Demers, Judge.

          Michael D. Starks and Kimberly S. Mello of Greenberg Traurig, P.A., Orlando; and Patrick G. Broderick of Greenberg Traurig, P.A., West Palm Beach, for Appellant.

          Thomas Eross, Jr., and Kendrick Almaguer of The Ticktin Law Group, P.L.L.C., Deerfield Beach, for Appellee Dwaine Sheward.

          No appearance for Appellee Patricia Sheward.

          CASANUEVA, Judge.

         Deutsche Bank National Trust Company, the plaintiff in this foreclosure action, appeals a final judgment entered in favor of Dwaine A. Sheward and Patricia Sheward. Deutsche Bank argues, and Mr. Sheward correctly concedes, that the trial court erred in excluding from evidence the payment history for the Shewards' loan, and we accordingly reverse the final judgment.

         I. FACTS AND PROCEDURAL BACKGROUND

         On December 14, 2006, the Shewards executed a balloon note and mortgage promising to pay New Century Mortgage Corporation the sum of $150, 000. The balloon note required the Shewards to begin making monthly payments on February 1, 2007, and the Shewards defaulted on the note and mortgage by failing to make the regular monthly payment due on October 1, 2008. Saxon Mortgage Services became the servicer for this loan in November 2007, and thereafter in November 2009, Ocwen Loan Servicing began servicing the loan.

         At the parties' bench trial, Deutsche Bank sought to introduce the payment history for the loan through the testimony of Sally Torres. Ms. Torres was a senior loan analyst for Ocwen and had worked for the company for twelve years. She testified that the payment history for the loan reflects all the payments, fees, escrow, and interest. Payment histories are maintained in electronic files and they are kept in the ordinary course and scope of Ocwen's business. Ms. Torres further testified that when a payment is received from a borrower, the computer system is updated at or near the time of the transaction. She attested that the payment history sought to be introduced is a true and accurate copy of the payment history for the Shewards' loan account.

         Regarding the loan records maintained by the prior servicer, Saxon Mortgage Services, Ms. Torres testified that Ocwen receives the electronic records for every new loan that they service. Ocwen's loan setup department is responsible for reviewing all of the electronic information for a new loan and converting the data so that it can be read by their system. Ocwen then compares the electronic records with the written loan documents to verify that the electronic information is correct.

         The Shewards objected to the admission of the payment history arguing that it was hearsay and that Ms. Saxon did not have any personal knowledge regarding that portion of the payment history that was maintained by Saxon, specifically how Saxon kept and maintained its records. Deutsche Bank countered that the payment history was admissible pursuant to the business record exception to the hearsay rule. See § 90.803(6)(a), Fla. Stat. (2008). The trial court initially overruled the Shewards' objection to the documents.

         However, after both sides rested, the trial court reserved ruling on the records' admissibility until it had an opportunity to review the trial transcript. Ultimately, the trial court determined that the records were inadmissible hearsay, because there was no testimony that the loan documents of Saxon were reviewed to ensure that they were correct. Accordingly, the court entered judgment in favor of the Shewards.

         II. ...


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