174 So. 3d 491
Fla. Dist. Ct. App.2015Background
- Homeowners (Cardona and Palomino) appealed a final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC.
- Nationstar amended its complaint alleging it was the holder of the promissory note and attached the same mortgage, note, and allonge from the original complaint, plus a corporate assignment dated June 27, 2012.
- Nationstar filed a "Certification as to Original Promissory Note" stating it possessed the original note as of September 21, 2013.
- At a non-jury trial, Nationstar called an employee who began working for Nationstar in January 2014; he never worked for the predecessor bank and learned about the loan solely by reviewing Nationstar’s business records stored in FileNet.
- The employee testified about possession of the note, default, payment history, and payoff figures based on those business records; the homeowners objected as hearsay because the underlying records were not admitted.
- The trial court overruled objections and entered judgment for Nationstar. The Fourth District reversed, concluding the employee’s testimony was inadmissible absent admission of the business records he relied on.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a witness may testify about the contents of a lender's business records not admitted into evidence | Testimony was admissible because the witness had personal knowledge from reviewing the records | Testimony inadmissible because witness's knowledge derived solely from records not introduced | Reversed: testimony inadmissible unless the business records are first admitted into evidence |
| Whether Nationstar proved standing to foreclose by showing possession of the note when complaint filed | Nationstar asserted it possessed the original note and filed a certification to that effect | Homeowners argued Nationstar failed to prove possession because the employee relied only on unadmitted records | Issue rendered moot by reversal on evidentiary error |
Key Cases Cited
- Cayea v. CitiMortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014) (standard of appellate review for evidentiary rulings)
- Sas v. Federal National Mortgage Ass'n, 112 So. 3d 778 (Fla. 2d DCA 2013) (trial court erred admitting testimony about servicer's records without admitting the records)
- Beauchamp v. Bank of N.Y., 150 So. 3d 827 (Fla. 4th DCA 2014) (remand required where witness testified about debt based on unadmitted records)
- Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015) (reversed where trial court failed to admit business records relied upon by witness)
- Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124 (Fla. 4th DCA 2006) (cited for appellate review standard)