TERRENCE AND TIWANNA KELSEY, APPELLANTS,
v.
SUNTRUST MORTGAGE, INC., APPELLEE
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The Kelseys appealed a default foreclosure judgment entered against them by SunTrust Mortgage. The appellate court reversed and remanded after SunTrust conceded error, finding that a witness lacked proper foundation to authenticate critical loan documents and that the documents constituted inadmissible hearsay.
The trial court erred in allowing Gergeceff to authenticate the note, mortgage, and other documents without establishing that she was a records custodian or possessed personal knowledge of the documents. The documents were inadmissible hearsay without proper authentication, and the case must be remanded for rehearing on this issue.
[1] A witness testifying about a loan and mortgage must have personal knowledge of the documents and the loan, or be a records custodian with proper foundation, to authentica…
[2] Testimony based solely on out-of-court documents not made available for inspection constitutes hearsay and is inadmissible without proper authentication.
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Join FLexlaw to unlock all legal intelligence“To establish its entitlement to foreclosure, SunTrust needed to introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the Kelseys' outstanding debt on the note.”
Establishes the elements required for a foreclosure plaintiff to prevail
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Join FLexlaw to unlock all legal intelligenceSunTrust sought to foreclose on the Kelseys' home. At trial, SunTrust's only witness was Lauren Gergeceff, a mediation litigation specialist employed …
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ON MOTION FOR REHEARING & PARTIAL CONCESSION OF ERROR
We grant the appellee’s motion for rehearing, withdraw our former opinion dated December 4, 2013, and substitute the following opinion in its stead.
This appeal comes to us from a final default judgment ordering the foreclosure of the Kelseys’ home in favor of SunTrust Mortgage, Inc. (“SunTrust”). Although the Kelseys have raised several points of error on appeal, we address only one, and based on SunTrust’s proper concession of error, we reverse and remand for further proceedings.
At trial, SunTrust’s only testifying witness was Lauren Gergeceff (“Gergeceff’), a mediation litigation specialist employed by Nationstar Mortgage, LLC (“Nations-tar”).1 Gergeceff testified that she had no independent knowledge of the loan, she had only seen the subject note for the first time the day of trial, and she had only become familiar with the mortgage file when she learned the case was being tried. Gergeceff also relied on a proposed final order that had been prepared by a third party to testify regarding the amount owing on the note at the time of foreclosure. The Kelseys objected to Gergeceffs authentication of the note, mortgage, and other documents because she lacked the requisite foundation and she was incompetent to testify because her purported knowledge was based entirely on out-of-court documents that had not been made available for inspection, and which were hearsay. The trial court overruled the objections, allowed Gergeceff to testify, and admitted the note and mortgage into evidence.
To establish its entitlement to foreclosure, SunTrust needed to introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the Kelseys’ outstanding debt on the note. See Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979) (holding that foreclosure plaintiffs must show: (1) an agreement, (2) a default, (3) an acceleration of debt to maturity, and (4) the amount due). Without the proper foundation, the documents Gergeceff relied upon to establish the amount due on the note were indisputably hearsay and were not properly authenticated. § 90.803, Fla. Stat. (2012); Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).
The Kelseys argue, among other things, that the trial court erred in allowing Ger-geceff to authenticate these documents without showing that she was a records custodian or that she had personal knowledge of the documents. SunTrust filed a partial concession of error in this Court, admitting that the trial court erred in allowing the documents, as they are hearsay without the proper authentication. We agree, and remand for rehearing on that issue. The Kelseys’ remaining arguments either lack merit, were decided in their previous interlocutory appeal, or are rendered moot based on our remand.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014)…discretion when it allowed the loan servi-cer’s witness to recite over objection the amount of indebtedness as reflected in the mortgagee’s business records without first admitting those records. Id. Similarly, in Kelsey v. SunTrust Mortgage, Inc., 131 So. 3d 825 (Fla. 3d DCA 2014), the Third District reviewed the trial court’s evidentiary ruling. Kelsey objected to admission of the bank’s records because the records custodian was unqualified and incompetent to testify. The trial court overruled the objectio…
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Liberty Home Equity Solutions, Inc. v. Raulston, 206 So. 3d 58 (Fla. 4th DCA 2016)…unt due. Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979). In other words, the plaintiff must introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the outstanding debt. Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014). Where there are conditions precedent to filing the suit, plaintiff must also prove that it has complied with them. Blum v. Deutsche Bank Tr. Co., 159 So. 3d 920, 920 (Fla. 4th DCA 2015). In Blum, we held that the failure to…
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Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…clude it from considering the "equitable circumstances" of the parties. Indeed, as this court observed in Wolkoff and as the majority repeats above, equity supported remanding the case for a new trial in both Sas and Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014), because of the type of error identified on appeal, not because of the exceptional circumstances of the parties. In this case, Wells Fargo submitted sufficient evidence to support the final judgment in its favor. The error w…1 / 2
Previewing 3 of 16 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)
- Asa M. Ernest and Anita B. Ernest v. Carter, 368 So. 2d 428 (Fla. 2d DCA 1979)