CARLOS TRAMONTANA, INDIVIDUALLY AND AS TRUSTEE UNDER A TRUST AGREEMENT, AND KNOWN AS TRUST NO. 440, DATED AUGUST 31, 2012, APPELLANT,
v.
BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE ALTERNATIVE LOAN TRUST 2005-51, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-51; AND 440 WEST, INC., APPELLEES
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Carlos Tramontana appealed a foreclosure judgment entered against him by Bank of New York Mellon, arguing the bank failed to properly establish the amounts due and owing through business records. The Florida appellate court affirmed the judgment because the lack of a trial transcript prevented meaningful appellate review of the evidentiary issues.
The court affirmed the foreclosure judgment because the absence of a trial transcript prevented appellate review of the evidentiary issues on appeal. Without a transcript, the appellate court cannot determine whether BNYM failed to prove the records qualified as business records or whether the trial court reversibly erred in admitting them.
[1] An appellate court will affirm a trial court's decision in the absence of a trial transcript, unless fundamental error appears on the face of the record.
[2] Without a record of trial proceedings, an appellate court cannot resolve factual issues to conclude that a trial court's judgment is not supported by evidence or an alter…
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Join FLexlaw to unlock all legal intelligence“Without a transcript, and in the absence of fundamental error on its face, an appellate court will affirm a trial court's decision.”
Establishes the procedural rule that governs appellate review when trial transcripts are absent.
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Join FLexlaw to unlock all legal intelligenceTramontana was the borrower in a mortgage loan secured by property, and BNYM served as trustee for the mortgage pass-through certificates. BNYM presen…
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Carlos Tramontana appeals the final judgment of foreclosure entered in favor of Bank of New York Mellon (BNYM). He maintains that BNYM failed to establish the amounts due and owing. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm the judgment.
Mr. Tramontana argues that the trial court erred in admitting BNYM’s loan payment history, which included records from prior loan servicers. He contends that BNYM failed to prove that the records qualified as business records under the evidence code. See § 90.803(6), Fla. Stat. (2014). BNYM could have established these documents as business records either by “providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy” or “establish[ing] trustworthiness by independently confirming the accuracy of the third-party’s business records upon receipt.” Bank of New York v. Calloway, 157 So.3d 1064, 1072 (Fla. 4th DCA 2015). Mr. Tramontana argues that the record fails to show that BNYM verified the prior servicers’ records or offered any witness testimony to establish such verification.
Fatally, there is no trial transcript. Without a transcript, and in the absence of fundamental error on its face, an appellate court will affirm a trial court’s decision. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”); see also 1321 Whitfield, LLC v. Silverman, 67 So.3d 435, 437 (Fla. 2d DCA 2011) (affirming final judgment of foreclosure where, due to absence of hearing transcript, this *603court was unable to meaningfully review the trial court’s findings).
In this case, there is no record of the trial testimony, any objections, or the trial court’s rulings on such objections. The record simply reflects that the trial court admitted the loan payment history into evidence. Further, the record is devoid of any evidence introduced by Mr. Tramonta-na to disprove the amounts reflected in the loan payment history. Without a transcript, Mr. Tramontana cannot prove that BNYM failed to establish amounts due and owing or that the trial court reversibly erred. See Snowden v. Wells Fargo Bank, 172 So.3d 506, 507-08 (Fla. 1st DCA 2015).
Affirmed.
LUCAS and BADALAMENTI, JJ., Concur.
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Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Bank OF NEW York for the Noteholders Cwabs Inc. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015)
- Snowden v. Wells Fargo Bank, 172 So. 3d 506 (Fla. 1st DCA 2015)
- 1321 Whitfield, LLC v. Silverman, 67 So. 3d 435 (Fla. 2d DCA 2011)