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Green Tree Servicing, LLC v. Simms

Florida Court of Appeals, Fifth District

June 14, 2019

GREEN TREE SERVICING, LLC, Appellant,
v.
JILL-CAPRI SIMMS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR COUNTRYWIDE BANK, FLORIDA HOUSING FINANCE CORPORATION AND EDEN ISLE HOMEOWNERS' ASSOCIATION, INC., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Theotis Bronson, Senior Judge

          Ronald M. Gache and Ileen J. Cantor, of Shapiro, Fishman & Gache, LLP, Boca Raton, and Melissa A. Giasi, of Kass Shuler, P.A., Tampa, for Appellant.

          Debi V. Rumph, of The Law Offices of Debi V. Rumph, Orlando, for Appellee, Jill-Capri Simms.

          No Appearance for Other Appellees.

          LAMBERT, J.

         Green Tree Servicing, LLC ("Green Tree") appeals the trial court's involuntary dismissal of the mortgage foreclosure action it brought against the borrower, Jill-Capri Simms. At the close of Green Tree's case-in-chief, the court granted Simms's motion to dismiss, finding that Green Tree had misapplied a pre-suit $9203.47 payment allegedly made by Simms to cure the then-existing default on the subject promissory note and mortgage. Green Tree argues that the trial court abused its discretion in excluding certain business records that, if admitted into evidence, would have shown that Simms did not make the $9203.47 payment and thus failed to cure the default. It further asserts that the court erred by improperly weighing the evidence when granting Simms's motion for involuntary dismissal. Because Green Tree's first argument is both meritorious and dispositive, we reverse the final order of involuntary dismissal and remand for a new trial. As a result, we find it unnecessary to address Green Tree's second argument.

         At trial, Green Tree called Simms as its first witness. The original note and a copy of the mortgage at issue were admitted into evidence through her without objection. Also admitted into evidence was a March 14, 2012 default letter sent by Green Tree to Simms pursuant to paragraph 22 of the mortgage. This letter provided Simms thirty days to pay the sum of $6450.48 to cure the existing default on the note and mortgage resulting from her alleged failure to pay certain monthly mortgage payments; otherwise, the entire balance owed on the note would be accelerated. When questioned at trial about payments that she may have made on the note and mortgage during 2012, Simms testified that she had made some payments but could not specifically recall how much she had paid.

         Green Tree next called Lacelia Knight to testify. Knight had worked as a "senior collector" for Green Tree for five years and, at the time of trial, was employed by Green Tree as a "foreclosure mediation representative." Through Knight, Green Tree's loan payment history, reflecting the payments received by Green Tree on the loan and any disbursements made by it, was admitted into evidence under the business records exception to the hearsay rule, as codified in section 90.803(6)(a), Florida Statutes (2016).[1] Pertinent here, the payment history reflected that on April 23, 2012, Green Tree received a payment on this loan account in the sum of $9203.47. Knight explained that the coding entry in the payment history showed that this payment was not personally made by Simms. Knight further testified that Green Tree applied the payment towards Simms's loan escrow balance, not to pay or otherwise satisfy the $6450.48 default amount described in its March 14, 2012 letter to Simms. The trial court would later grant the involuntary dismissal based upon this "misapplication."

         To explain this $9203.47 payment received and why it was not applied to cure the default, Green Tree next sought to admit into evidence, also under section 90.803(6)(a), its collection notes from August 2011 through December 2015. Knight testified as to how Green Tree keeps collection notes as a part of its regularly conducted business activity and that it was Green Tree's regular practice to do so. She also testified to her first-hand, extensive knowledge and experience as to how Green Tree contemporaneously generates and enters its collection notes. Knight explained that whenever Green Tree makes an outward call to the borrower or receives inbound calls or information into its system, notes about each event are contemporaneously entered into Green Tree's records by its employees, and that once these collection notes are entered, they cannot be, nor are they, edited or redacted.

         Pertinent to the specific issue before us surrounding the $9203.47 payment and construing the evidence most favorably to Green Tree, the collection notes, if they had been admitted into evidence, would have shown that approximately two weeks after Green Tree sent to Simms the aforementioned March 14 default letter, Simms telephoned Green Tree, advising that the master bedroom of the mortgaged property had been damaged by a flood and that she had filed a damage claim with her insurer, Universal Insurance Company. Thereafter, on April 11, 2012, the records indicated that Green Tree received estimates from an adjuster with the insurer, and from Simms's contractor, Paul Davis Restoration, that the necessary work to repair the bedroom would cost $9203.47.

         Slightly less than two weeks later, the collection notes reflected that a check for $9203.47 was received by Green Tree from Universal Insurance Company to pay for Simms's water damage claim. Green Tree also received a copy of a work authorization document from Paul Davis Restoration. The collection notes reflected that on April 24, 2012, Simms notified Green Tree to contact her contractor directly "if anything else is needed."

         Two days later, the collection notes showed that Green Tree disbursed a check payable to Simms or Paul Davis Restoration in the amount of $4601.73, which is approximately one-half of the $9203.47 Green Tree had previously received from Simms's insurer. Thereafter, in August 2012, after Green Tree had received from the contractor color photographs of the work performed, paid receipts, and a certificate of completion demonstrating that the repair work had been successfully accomplished, it issued a second check, this time in the amount of $4601.74, again payable to Simms or Paul Davis Restoration, thus totaling the $9203.47 that Green Tree had previously received.

         Despite these collection notes appearing to be wholly relevant to address or refute Simms's claim that she personally had paid the sum of $9203.47 to cure the aforementioned default in the note and mortgage, Simms objected to their admissibility as being "irrelevant." She also objected that the collection notes should not be admitted because they were a summary of records prepared under section 90.956, Florida Statutes, without Green Tree having provided her with the statutorily-required notice of its intent to use summaries.[2] Lastly, Simms argued that the collection notes were inadmissible because they were ...


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