GREEN TREE SERVICING, LLC N/K/A DITECH FINANCIAL, LLC, APPELLANT,
v.
DAVID G. ATCHISON, HARBOUR/PONCE HOLDINGS, LLC, DEBBIE KAY HUDSON, LINKS SOUTH AT HARBOUR VILLAGE CONDOMINIUM ASSOCIATION, INC., ET AL., APPELLEES
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.
Green Tree Servicing challenged a trial court's dismissal of its mortgage foreclosure action, arguing that two erroneous evidentiary rulings—excluding an assignment of mortgage and testimony about lost instrument procedures—warranted reversal. The appellate court affirmed, finding that even if the trial court erred, the errors were not harmful because the excluded evidence would not have established standing or re-established the lost promissory note.
The trial court erred in excluding the assignment of mortgage as the assignment should have been admissible as a verbal act regardless of the business records exception, but this error was not harmful because Green Tree still had to establish standing at the time of trial. The exclusion of testimony about lost instrument procedures was also not harmful error because the testimony would not have been sufficient to re-establish the lost note.
[1] An assignment of mortgage is admissible into evidence as a verbal act irrespective of the business record exception to the hearsay rule.
[2] A promissory note is admissible for its independent legal significance to establish the existence of a contractual relationship and the rights and obligations of the part…
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“Because Appellees raised a defense of lack of standing, Appellant had the burden at trial to establish that it had standing to foreclose at the time of trial and that the original plaintiff had standing at the time the foreclosure complaint was filed.”
Establishes that Green Tree bore the burden of proving standing both at inception and at time of trial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGreen Tree Servicing was substituted as plaintiff nearly six years after the original mortgage foreclosure complaint was filed. At trial, Green Tree s…
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 Verbal Act Doctrine cases and more on FLexlaw
Appellant challenges the final judgment dismissing its mortgage foreclosure action with prejudice after trial. Appellant argues that two erroneous evidentiary rulings made by the trial court excluding certain evidence at trial requires that we reverse the final judgment and remand for a new trial. Because we conclude that any error committed by the trial court did not constitute harmful error, we affirm.
Appellant did not file the initial mortgage foreclosure complaint. Almost six years after the original complaint was filed, Appellant was granted leave by the trial court to be substituted as the party plaintiff and to file a two-count amended complaint to foreclose on the subject mortgage and to re-establish the lost promissory note. The case proceeded to trial on Appellant’s amended complaint. Because Appellees raised a defense of lack of standing, Appellant had the burden at trial to establish that it had standing to foreclose at the time of trial and that the original plaintiff had standing at the time the foreclosure complaint was filed. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015) (quoting Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014)).
In an effort to establish the standing of the original plaintiff, Appellant attempted *636to admit into evidence .an assignment of the mortgage from the lender to the initial plaintiff. The trial court excluded this evidence, concluding that it was not'trustworthy and was inadmissible under the business records exception to the hearsay rule codified at section 90.803(6), Florida Statutes (2016). In its first argument on appeal, Appellant contends that the trial court erred in ruling that the assignment of mortgage was inadmissible under section 90.803(6) because the mortgage assignment was separately admissible as a verbal act.1 See Holt v. Calchas, LLC, 155 So.3d 499, 502 n.2 (Fla. 4th DCA 2015) (concluding-that an-assignment of mortgage is admissible into evidence as a ver-' bal act irrespective of the business record exception to the hearsay rule); Deutsche Bank Nat’l Tr. Co. v. Alaqua Prop., 190 So.3d 662, 665 (Fla. 5th DCA 2016) (holding that a promissory note does not have to qualify as a business record under the business record exception to the hearsay rule and is admissible for its independent legal' significance—to establish the -existence of the contractual relationship and the rights and obligations of the parties to the note, regardless of the truth of any assertions made in the document). We agree with Appellant that the trial court erred in failing to admit into evidence the assignment of mortgage as that would have assisted Appellant in establishing standing at the inception of the suit. However, Appellant was still-required to establish standing at the time of-trial.
Appellant’s other argument for reversal is that the trial court erred in precluding Appellant’s witness from testifying about Appellant’s general policies and procedures concerning lost instruments. Notably, Appellant does not contend that at some point, it had possession.of the original note and then lost it. Rather, the note was ostensibly lost by a predecessor holder. Having reviewed the witness’s testimony, as well as his proffered testimony, we find that the testimony, if admitted into evidence, would not have been sufficient to re-establish the lost note. Accordingly, even if the trial court erred in its two challenged rulings, “an error in an eviden-tiary ruling does not necessarily constitute harmful error.” Wells Fargo Bank, N.A. v. Ousley, 212 So.3d 1056, 1058 (Fla. 1st DCA 2016). Appellant has not shown harmful error. The final judgment is therefore affirmed.
AFFIRMED.
COHEN, C.J., PALMER and LAMBERT, JJ., concur. -
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Cortorreal-Poche v. Fed. Nat'l Mortg. Ass'n & Englewood Park Neighborhood Ass'n, Inc. (Fla. 5th DCA 2020)…. The trial court sustained Fannie Mae’s hearsay objection to introduction of the assignment into evidence, rejecting the homeowner’s argument that the assignment was admissible as a verbal act. But see, e.g., Green Tree Servicing, LLC v. Atchison, 230 So. 3d 635, 636 (Fla. 5th DCA 2017); Holt v. Calchas, LLC, 155 So. 3d 499, 502 n.2 (Fla. 4th DCA 2015). The trial court reasoned, “Even if considered competent evidence, the unrecorded assignment shows assignment from Aurora to Federal National Mortgage Assoc…
Authorities Cited
- Daniel and Nancy Kiefert v. Nationstar Mortg., LLC, 153 So. 3d 351 (Fla. 1st DCA 2014)
- Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639 (Fla. 2d DCA 2015)
- Anthony Banks v. State, 790 So. 2d 1094 (Fla. 2001)
- Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015)
- Diaz v. U.S. Bank Nat'l Ass'n, 155 So. 3d 499 (Fla. 5th DCA 2015)
- Edelman v. Est. OF Allen Kent Breed, 842 So. 2d 939 (Fla. 5th DCA 2003)
- Arguelles v. State, 842 So. 2d 939 (Fla. 4th DCA 2003)
- Deutsche Bank Nat'l Tr. Co. v. Alaqua Prop., 190 So. 3d 662 (Fla. 5th DCA 2016)
- Wells Fargo Bank, N.A. v. Ousley, 212 So. 3d 1056 (Fla. 1st DCA 2016)
- Jiskly Arminan v. State, 190 So. 3d 662 (Fla. 3d DCA 2016)