CDC CAPITAL INVESTMENTS, LLC, AS TRUSTEE
v.
BAYVIEW LOAN SERVICING, LLC
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The appellate court reversed a summary judgment of foreclosure because the appellee failed to provide competent substantial evidence of the amounts due. The court found that the affidavit used to establish the amount due relied on business records from a prior note owner without sufficient proof of accuracy or the affiant's familiarity with the prior business's practices.
Yes, the trial court erred in granting summary final judgment of foreclosure because the appellee failed to prove the amounts due by competent substantial evidence. The affidavit relied upon was insufficient to establish the accuracy of the prior owner's records.
[1] An affidavit establishing the amount due in a foreclosure action that relies on business records from the prior owner of the note is insufficient to support summary judgm…
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Join FLexlaw to unlock all legal intelligence“We find that the trial court erred in granting summary final judgment of foreclosure, as Appellee failed to properly prove amounts due by competent substantial evidence.”
Establishes the court's finding that the lower court erred in granting summary judgment due to insufficient proof of amounts due.
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Join FLexlaw to unlock all legal intelligenceThe appellee sought a summary judgment of foreclosure. To prove the amounts due, the appellee relied on an affidavit that incorporated business record…
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PER CURIAM.
We find that the trial court erred in granting summary final judgment of foreclosure, as Appellee failed to properly prove amounts due by competent substantial evidence. See Clay Cty. Land Tr. No. 08-04-25-0078-014-27, Orange Park Tr. Servs., LLC v. JPMorgan Chase Bank, Nat’l Ass’n, 152 So. 3d 83 (Fla. 1st DCA 2014) (reversing summary judgment where the affidavit establishing the amount due relied on business records from the prior owner of the note and there was no showing the affiant was familiar with the prior business’s practices or had verified the accuracy of the records). See also Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014) (finding error in admitting computer-generated documents offered through a loan services employee who was not an employee of original mortgage holder, lacked personal knowledge of original holder’s record-keeping procedures, and was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, whether original owner regularly made such records, or whether the records belonged to original owner); Channell v. Deutsche Bank Nat’l. Tr. Co., 173 So. 3d 1017, 1019 (Fla. 2d DCA 2015) (holding that where a “business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’” (citing Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1071 (Fla. 4th DCA 2015))).*
We reverse only as to the judgment amount and remand for further proceedings to establish that amount. The order under review is otherwise affirmed.
AFFIRMED in part, REVERSED in part and REMANDED. LEWIS, MAKAR, and WINOKUR, JJ., concur. _____________________________
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Citator
Cited By
-
U. S. Bank Nat'l Assoc. v. Engle (Fla. 2d DCA 2020)
Authorities Cited
- Bank OF NEW York for the Noteholders Cwabs Inc. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015)
- Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570 (Fla. 1st DCA 2014)
- Clay Cnty. Land Tr. # 08-04-25-0078-014-27 v. Jpmorgan Chase Bank, 152 So. 3d 83 (Fla. 1st DCA 2014)