THELMA WEISENBERG AND DEENA WEISENBERG, APPELLANTS,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HARBOR VIEW MORTGAGE LOAN TRUST MORTGAGE LOAN PASS-THROUGH CERTIFICATES SERIES 2007-5, APPELLEE
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Homeowners appealed a summary foreclosure judgment, challenging the loan servicer's affidavit as inadmissible hearsay. The Fourth District affirmed, holding that the affidavit satisfied the business records exception because the affiant demonstrated adequate knowledge of how the servicing records were created and maintained.
The affidavit was admissible under the business records exception because Stevens demonstrated through her deposition testimony that she had knowledge of how the servicing records were created, maintained, and uploaded into the mortgage servicing platform system.
[1] An affidavit from a loan servicer's supervisor may be admissible under the business records exception if the supervisor demonstrates familiarity with the record-keeping s…
[2] To admit business records, the proponent must show the record was made at or near the time of the event, by or from information transmitted by a person with knowledge, ke…
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Join FLexlaw to unlock all legal intelligence“Business records may be admitted under section 90.803(6) if the proponent of the evidence demonstrates the following through a records custodian or other qualified person: (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.”
Establishes the four-part test for admissibility of business records under Florida's hearsay exception
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Join FLexlaw to unlock all legal intelligenceAppellants Thelma and Deena Weisenberg defaulted on their mortgage loan. Deutsche Bank, as trustee, sought foreclosure and filed an affidavit by Cynth…
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Thelma and Deena Weisenberg appeal a summary final judgment of foreclosure in favor of Deutsche Bank, claiming that the loan servicer’s affidavit constituted inadmissible hearsay. We find that the affidavit complied with the requirements of the business records exception and affirm.
In support of its motion for summary judgment, the bank filed the affidavit of Cynthia Stevens, a supervisor at the bank’s servicing agent, American Home Mortgage Servicing, Inc., who stated that appellants owed in excess of $444,000. After deposing Stevens, appellants moved to strike her affidavit, claiming she did not have sufficient personal knowledge of the matters sworn to in the affidavit. The trial court denied the motion to strike and entered a final judgment of foreclosure.
Business records may be admitted under section 90.803(6) if the proponent of the evidence demonstrates the following through a records custodian or other qualified person:
(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.
Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).
In Glarum v. LaSalle Bank National Ass’n, 83 So.3d 780 (Fla. 4th DCA 2011), we found that the affidavit of a loan servicing specialist constituted inadmissible hearsay where the specialist could not state in his deposition whether the records he relied upon were made in the regular course of business. He “did not know who, how, or when the data entries were made into [the servicer’s] computer system.” Id. at 782. He had “[n]o idea” who made the entries when payments were made or when the account needed to be updated. Id. Nor did he know whether there was a department that input account activity into the databases. The specialist had a total lack of knowledge as to how his company’s own data was produced.
Unlike in Glarum, the deposition excerpts show that Stevens knew how the data was produced. Stevens testified that the cashiering department was responsible for collecting and applying payments. Information relating to the servicing of the loans was kept in a program known as the mortgage servicing platform, which she relied on to verify the specific figures in her affidavit. Her testimony demonstrated that she was familiar with the bank’s record-keeping system and had knowledge of how the data was uploaded into the system.
*1113In sum, we find that the affidavit satisfied the business records exception. As such, we affirm the denial of appellants’ motion to strike and affirm the final judgment of foreclosure.
Affirmed.
POLEN, GROSS and LEVINE, JJ„ concur.
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Bank OF NEW York for the Noteholders Cwabs Inc. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015)…procedures he was even less familiar.” Id. at 783. While this latter fact was relevant, the takeaway was that the “specialist had a total lack of knowledge as to how his company’s own data was produced.” Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1111, 1112 (Fla. 4th DCA 2012) (distinguishing Glarum where the supervisor at the bank’s servicing agent’s deposition [*1070] showed that she “knew how the data was produced” and “demonstrated that she was familiar with the bank’s record-keeping system a…
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Natacha Peuguero and Angelo Peuguero v. Bank OF Am., N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015)…if the printouts were not kept in the ordinary course of business, “so long as a qualified witness testifies as to the manner of preparation, reliability, and trustworthiness.” Id. at 1217. Relying on Weisenberg v. Deutsche Bank National Trust Co., 89 So. 3d 1111, 1113 (Fla. 4th DCA 2012), we held that the witness had sufficient knowledge where he “demonstrated his familiarity with [the bankj’s record-keeping system and the process for uploading payment information.” Cayea, 138 So. 3d at 1218. Likewise, the…
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Loyal R. Cayea, Jr. v. Citimortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014)…h the activity to provide testimony. Id. at 493 (quoting Alexander v. Allstate Ins. Co., 388 So. 2d 592, 593 (Fla. 5th DCA 1980)). This Court has dealt with similar business record custodian issues in Weisenberg v. Deutsche Bank National Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012), and Glarum v. LaSalle Bank National Association, 83 So. 3d 780 (Fla. 4th DCA 2011). Glarum dealt with affidavits which were used by the bank in support of a motion for summary judgment. Id. at 782. In that case, the custodian t…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yisrael v. State, 993 So. 2d 952 (Fla. 2008)
- Glarum v. Lasalle Bank Nat'l Ass'n for Merrill Lynch Mortg. Invs. Tr., 83 So. 3d 780 (Fla. 4th DCA 2011)