KIMBERLY A. ENSLER, APPELLANT,
v.
AURORA LOAN SERVICES, LLC, APPELLEE

Fla. 4th DCA | 2015-10-28
No. 4D14-351
STEVENSON and KLINGENSMITH,-JJ., concur.
178 So. 3d 95 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 13 cases

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Holding

The court held that the trial court erred in admitting business records without proper foundation, and without this evidence, the plaintiff could not prove a condition precedent to foreclosure.


Headnotes

[1] A witness's general testimony that a prior note holder follows a standard record-keeping practice, without discussing details to show compliance with the business records…

[2] A subsequent note holder can provide testimony to satisfy the business records exception when it has procedures in place to check the accuracy of information received fro…

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Facts & Procedural History

Nationstar Mortgage LLC, substituted as plaintiff in a foreclosure action, attempted to introduce business records from the prior servicer, Aurora Loa…

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Opinion of the Court
LEVINE, J.

LEVINE, J.

Appellant appeals a final judgment of mortgage foreclosure entered in favor of appellee Aurora Loan Services. Because we find that the trial court erred in allowing the introduction of certain evidence, and that no final judgment in favor of appellee could be entered without such evidence, we reverse.

Aurora Loan Services, LLC, brought a foreclosure action against Kimberly A. En-sler. Prior to trial, however, Nationstar Mortgage LLC was substituted as the party plaintiff because a “service transfer” occurred subject to a power of attorney.

At trial, Ensler objected to Nationstar introducing some of Aurora’s business records into evidence. Ensler argued Na-tionstar’s witness, Fay Janati, a litigation resolution analyst for Nationstar, did not have the ability to identify and testify about Aurora’s breach letter, payment history, and power of attorney. Janati conceded that she never visited any Aurora office, never worked for Aurora, never spoke to any Aurora employee, and did not have personal knowledge as to how Aurora processed payments, kept its payment history, or compiled and stored its records. But Janati nevertheless felt Aurora’s records were “accurate” because *97“[t]hey’re a reputable big company and we trust them' and they trust us.” The trial court overruled Ensler’s objections. After Nationstar rested, Ensler moved for an involuntary dismissal, which the trial court denied. The trial court subsequently entered final judgment of foreclosure in favor of Aurora.

On appeal, Ensler argues that Nations-tar did not satisfy the requirements of the business records exception to hearsay. As a result, the trial court erred in denying her motion for involuntary dismissal based upon the lack of competent, substantial evidence concerning damages and entitlement to foreclose.

“The standard of review for denial of a motion for involuntary dismissal at trial is de novo.” Holt v. Calchas, LLC, 155 So.3d 499, 503 (Fla. 4th DCA 2015) (citation omitted).

The elements to prove that evidence is admissible under the business records exception of section 90.803(6)(a), Florida Statutes (2013), are:

(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.

Holt, 155 So.3d at 503 (quoting Yisrael v. State, 993 So.2d 952, 956 (Fla.2008)). “[A] witness’s general testimony that a prior note holder follows a standard record-keeping practice, without discussing details to show compliance with section 90.803(6), is not enough to establish a foundation for the business records exception.” Id. at 505. However, “where the current note holder ha[s] procedures in place to check the accuracy of the information it received from the previous note holder,” then “[the] subsequent note holder can [ ] provide testimony” to satisfy the business: records exception. Id. at 506.

In Holt, a foreclosing bank sought to admit records of prior servicers into evidence. Id. at 502. However, the bank’s witness had never worked for the prior servicers, did not know who had transmitted any of the" prior servicers’ records, and had never seen the prior servicers’ policy manuals. Id. The only basis of the witness’s knowledge was that the prior servi-cers followed “the generally accepted servicing practice.” Id. at 505. This court held that the'bank did not provide sufficient information to lay the foundation for the business records exception. Id. at 506. See also Burdeshaw v. Bank of N.Y. Mellon, 148 So.3d 819, 826 (Fla. 1st DCA 2014) (finding the bank failed to satisfy the business records exception where the testimony that the records were accurate “was merely supposition, based on her general knowledge .of ordinary mortgage industry practices, • not any specific knowledge about” the original lender and subsequent servicers); Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780, 782.(Fla. 4th DCA 2011) (finding the prior servicer’s records were inadmissible hearsay because the plaintiffs only witness “did not know who, how, or when the data entries were made into [the prior servicer’s] computer system” and he “could not state if the récords were made in the regular course of business’’).

In the instant case, Nationstar failed to satisfy the requirements of the business records exception. Janati, Na-tionstar’s sole witness, never worked for Aurora, never visited any Aurora office, and never spoke to any Aurora employee. She did not have personal knowledge as to how Aurora processed, compiled, or retained its records, ineluding the breach letter. Although Janati felt Aurora’s rec*98ords were accurate because “[tjhey’re a reputable big company,” she never -identified any particular record-keeping system Aurora used. She also did not testify that Nationstar had any mechanisms for checking the accuracy of Aurora’s numbers. See Holt, 155 So.3d at 504-05. Janati’s testimony was therefore “not enough ,to establish .a foundation for the business records exception,” Id. at 505. Thus, the trial court erred when it permitted the introduction of the Aurora records into evidence.

Aurora argues the introduction. of Aurora’s payment history was harmless error because Nationstar’s payment history was admitted without objection. This argument is meritless.

Paragraph twenty-two of the mortgage required that notice of breach and opportunity to cure be sent to Ensler as a condition precedent to filing suit. However, the only indication the notice was actually sent comes from inadmissible-hearsay, i.e., Aurora’s records. Because Nationstar has failed to' present any admissible evidence that the notice was actually sent, we reverse the final judgment of foreclosure and remand for further proceedings. See Holt, 155 So.3d at 506-07.

Reversed.and remanded for farther ‘proceedings consistent with this opinion.

STEVENSON and KLINGENSMITH,-JJ., concur.


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Citator

Cited By

  • Sanchez v. Suntrust Bank, 179 So. 3d 538 (Fla. 4th DCA 2015)
    …tify only: by first name: On these facts it cannot be- said that this witness had sufficient knowledge to lay the foundation for the admission , of the. screenshot into evidence under the business records exception. See Ensler v. Aurora Loan Servs., 178 So. 3d 95, 98 (Fla. 4th DCA 2015) (stating that ,a “ ‘witness’s general testimony that a prior note holder follows a standard record-keeping practice, without discussing details to show compliance with section 90.803(6), is not enough [*542] to establish a fo…
  • PNC Bank Nat'l Ass'n v. Roberts, 246 So. 3d 482 (Fla. 5th DCA 2018)
    …iled was, in fact, received."). In addition to admitting the acceleration letter into evidence, there must also be competent, substantial evidence that the acceleration letters were actually sent to Borrowers. See Ensler v. Aurora Loan Servs., LLC, 178 So. 3d 95, 97 (Fla 4th DCA 2015). "[M]ailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt." Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 68…
  • Torres v. Deutsche Bank Nat'l Tr., 256 So. 3d 903 (Fla. 4th DCA 2018)

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