FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; David A. Demers,
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.
Eross, Jr., and Kendrick Almaguer of The Ticktin Law Group,
P.L.L.C., Deerfield Beach, for Appellee Dwaine Sheward.
appearance for Appellee Patricia Sheward.
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
FACTS AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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