IAIN AND NATASHA MCMILLAN, APPELLANTS,
v.
THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2006-J8, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-J8, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Homeowners appealed a foreclosure judgment, challenging whether the lender proved certain amounts due and owing. The Florida appellate court affirmed the foreclosure but reversed and remanded regarding specific charges (interest, insurance, fees) that were supported only by a witness reading from an unadmitted proposed final judgment rather than competent business records.
The court affirmed the foreclosure judgment on all issues except the specific disputed amounts. The court reversed as to the amounts for interest, hazard insurance, property inspection fee, expert affidavit review, and courier fee, finding these were not supported by competent evidence, and remanded for proper determination of the amounts owed.
[1] A document identified but never admitted into evidence is not competent evidence to support a judgment.
[2] Testimony from a witness reading from a proposed final judgment not admitted into evidence is insufficient to prove amounts due and owing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A document that was identified but never admitted into evidence as an exhibit is not competent evidence to support a judgment.”
Establishes the core legal principle that unadmitted documents cannot support a judgment, even if a witness reads from them
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe bank's servicer employee testified regarding amounts due for interest, taxes, hazard insurance, property inspection fees, expert affidavit review,…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Business Records Exception cases and more on FLexlaw
Iain and Natasha^ McMillan (“appellants”) appeal the trial court’s final judgment of foreclosure in favor of The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the Certificate. Holders of CWALT, Inc., Alternative Loan Trust 2006-J8, Mortgage Pass-Through Certificates, Series 2006-J8 (the “bank”). We affirm on all issues save one; namely, whether testimony from the bank’s witness regarding certain amounts due and owing were proved by competent, substantial evidence. On that issue, we agree with appellants and remand. ''
During the trial, the bank called a witness employed by the company servicing appellants’ loan. That witness was given a copy of a proposed final judgment to assist in providing her testimony regarding the specific amounts due. Although the witness did not create the proposed judgment, she read from it for the express purpose of providing the trial judge with amounts for interest, taxes, hazard insurance, property inspection fees, an expert affidavit review, and a courier fee, all sought to be recouped from appellants. The trial judge stated the document, would not be placed in evidence.
The witness never produced the actual business records that substantiated those figures. Counsel for appellants moved for involuntary dismissal at the close of the bank’s case, arguing in part that the bank failed to prove the amounts allegedly owed because no evidence was admitted-to support the figures discussed above other than the witness reading from a document that was not marked as an exhibit or entered into evidence.
The facts of this case are analogous, to those described in Peuguero v. Bank of America, N.A., 169 So.3d 1198, 1200-01 (Fla. 4th DCA 2015). .There, “the only evidence of the amount of interest owed ... came from [a] witness, who merely testified that the amount written on a proposed final judgment was correct.” Id. at 1203. Like this case, the “proposed judgment was never admitted into evidence.” Id. We noted:
“A document that was identified but never admitted, into evidence as an exhibit is not competent evidence to support a judgment.” Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 281-82 (Fla. 2d DCA 2014). In Wolkojf, the Second District reversed a judgment of foreclosure where the plaintiffs witness “merely confirmed that the totals given to him on a proposed final judgment ‘seemed accurate’ ” and never actually stated the total amount owed. Id. at 281. Similarly, in Sas v. Federal National Mortgage Ass’n, 112 So.3d 778, '779 (Fla. 2d DCA 2013), the plaintiff presented witness testimony of the specific amount owed, but faked to produce the business records upon which the witness relied.
As we held in Peuguero, this case appears to be closer to Sas than Wolkojf. “ ‘[L]ike the plaintiff in Sas, [here] • the Bank established the amount of indebtedness through -Witness testimony, even though that testimony concededly was inadmissible hearsay. This is unlike Wol-kojf, where the plaintiff failed to produce any evidence, admissible ór not, supporting the amount of indebtedness.’ ” Id. at 1204 (quoting Beauchamp v. Bank of N.Y., 150 So.3d 827, 829 n. 2 (Fla. 4th DCA 2014)).
*1092Based on the foregoing, we affirm the judgment of foreclosure, but reverse as to the amounts in the final judgment relating to interest, hazard insurance, the property-inspection fee, the expert affidavit review, and the courier fee. We remand the case for further proceedings to determine the amounts owed. See id. (remanding for proper “determination of amounts owed”); see also Beauchamp, 150 So.3d -at 828 (noting the bank’s “failure to provide admissible evidence that would-establish the proper amount due on the note was not harmless error,” and “remand[ing] the case for further proceedings to determine that amount”).
Affirmed in part; Reversed in part; Remanded for further proceedings consistent with this opinion.
DAMOORGÍAN and LEVINE, JJ., - concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)…e proper remedy is dismissal.... [W]here the trial court erroneously admitted evidence of the amount owed on a note ... it is appropriate to remand for further proceedings to determine the amount of the debt owed."); McMillan v. Bank of N.Y. Mellon, 180 So. 3d 1090, 1092 (Fla. 4th DCA 2015) (remanding for further proceedings when "[l]ike the plaintiff in Sas, [here] the Bank established the amount of indebtedness through witness testimony, even though that testimony concededly was inadmissible hearsay" and dis…
-
Harutyun Hovannesian v. Pennymac Corp. & Teni Hovannesian, 190 So. 3d 681 (Fla. 4th DCA 2016)…us expenses — were not supported by competent substantial evidence. The appropriate remedy is to reverse and remand the judgment for further proceedings to properly establish the correct amount due and owing. See McMillan v. Bank of New York Mellon, 180 So. 3d 1090, 1091-92 (Fla. 4th DCA 2015) (affirming the foreclosure judgment, but reversing as to the amounts in the final judgment relating to certain forms of damages that were not proven by competent substantial evidence, and remanding “for further proceedin…
-
Ottawa Props. 2 LLC v. Cent. Mortg. Co., 202 So. 3d 102 (Fla. 4th DCA 2016)…mount of damages reflected in the final judgment. Because there was some, but insufficient, evidence of the total amount of indebtedness, we reverse on the issue of damages and remand for further proceedings. See McMillan v. Bank of New York Mellon, 180 So. 3d 1090, 1091-92 (Fla. 4th DCA 2015); Peuguero v. Bank of America, N.A., 169 So. 3d 1198, 1204 (Fla. 4th DCA 2015). Affirmed in part, reversed in part, and remanded. WARNER and CONNER, JJ., concur. . The defendant also argues that the loan history summar…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014)
- Natacha Peuguero and Angelo Peuguero v. Bank OF Am., N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015)
- SAS v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013)
- Beauchamp v. The Bank OF NEW York, 150 So. 3d 827 (Fla. 4th DCA 2014)