final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 15-19050, Reemberto Diaz, Judge.
Wesoloski Carlson, P.A., and Erik D. Wesoloski, for
McGlinchey Stafford, PLLC, and William L. Grimsley
(Jacksonville), for appellee.
SALTER, HENDON and MILLER, JJ.
Miami 2 LLC ("Azran") appeals from a final judgment
of foreclosure rendered in favor of Deutsche Bank National
Trust Company, etc. ("Bank") in June 2018. We
original owner of the property at issue defaulted in 2008,
and the Bank sued to foreclose that same year. The case was
dismissed in 2011 for failure to prosecute. In 2013, the
property's condominium association sued for unpaid
assessments, and a final judgment was rendered. The property
owner declared bankruptcy, and Azran ultimately purchased the
property at a foreclosure sale, and a certificate of title
was issued to Azran in 2014. The Bank filed a new foreclosure
action in 2015, naming Azran as a defendant. The trial date was set for June 1, 2018.
On March 21, 2018, the court issued a uniform order setting
cause for a non-jury trial. In the uniform order, the court
required two things: 1) no later than twenty days before the
trial date, the parties shall exchange expert witness lists
with one another, and "shall make available to the other
party" all the exhibits to be offered as evidence at
trial; and 2) no later than fifteen days before the trial
date, the parties shall furnish each other with the
non-expert witness list, and complete all of their
depositions before these time limitations.
days after the uniform order was rendered, and over two
months prior to the trial date, the Bank provided a letter to
Azran's counsel inviting them to schedule a pre-trial
meeting in which counsel could look at the exhibits, decide
what evidence would be admissible absent stipulations, review
depositions, discuss settlement, etc. The record does not
indicate whether Azran took advantage of that invitation to
inspect the Bank's records and exhibits and to engage in
discussion. On May 11, 2018, twenty-one days before trial,
the Bank furnished opposing counsel with its amended witness
before trial, Azran filed a motion in limine seeking
sanctions against the Bank for non-compliance with the Order.
Azran argued that the Bank had not provided it with copies of
the trial exhibits, or given it enough time to depose its
witness. The trial court heard the arguments and denied the
motion. Azran did not call any witnesses or present any
evidence at the foreclosure bench trial. At the conclusion of
the bench trial, the court granted final judgment in favor of
the Bank. Azran argues on appeal that the trial court erred
by denying the motion in limine, and the final judgment of
foreclosure must be reversed. We disagree.
first asserts that the Bank did not provide it with trial
exhibits until the day before trial. The record, however,
shows that the Bank made its trial exhibits available to
opposing counsel, pursuant to the uniform order, at least two
months prior to trial. The Bank was not required by the
uniform order to give copies of all its exhibits to opposing
counsel. Rather, the order clearly states: "[a]ll
exhibits . . . shall be made available" to opposing
counsel. This was not a complex mortgage situation and the
documents presented at the trial were the standard note,
mortgage, servicers and payment history, etc. There is no
claim by Azran that the files were overwhelming, and indeed
there is no suggestion in the record that Azran took
advantage of the early availability of the records. We
conclude on this basis that the trial court did not abuse its
discretion by denying the motion in limine.
next argues that "all" of the Bank's trial
exhibits are business records of predecessor companies, and
are thus hearsay and inadmissible because the Bank failed to
satisfy the business records exception to that rule. We
Bank's witness, the records custodian from Select
Portfolio Servicing, testified that as his company was the
subsequent servicer of the mortgage, that he was familiar
with the Bank's boarding process, and that the records
were verified and boarded accordingly. It is well-settled
that a record custodian who has been called to testify under
oath need not be the actual person who prepared the document,
but he or she must demonstrate knowledge of each requirement
for establishing the business record foundation. Bank of
N.Y. v. Calloway, 157 So.3d 1064, 1073 (Fla. 4th DCA
2015). The circumstances of the loan transfer itself would
have been sufficient to establish trustworthiness given the
business relationships and common practices inherent among
lending institutions acquiring and selling loans.
Id. Azran did not object to the witness's
competence to testify, it objected to various admitted
documents and that the witness did not personally know who
"pushed the button" to create those documents.
business records exception, section 90.803(6), Florida
Statutes (2018), allows a party to introduce evidence that