Bank of America, N.A. v. Delgado
166 So. 3d 857
| Fla. Dist. Ct. App. | 2015Background
- Borrowers executed a $247,000 mortgage and note in 2005; Bank filed to foreclose in 2010, alleging default in June 2009 and no subsequent payments.
- At nonjury trial the original note and mortgage were admitted without objection; Bank sought to admit the loan payment history as a business record.
- Bank witness Mary Davis (hired 2012) reviewed the loan file, described the bank’s record-keeping process, and testified the payment-history entries were made at or near the event, kept in the ordinary course, and appeared accurate.
- Borrowers objected because Davis was not employed by the bank in 2005 and could not confirm historical policies; trial court sustained the objection and excluded the payment history.
- At close of Bank’s case the court entered final judgment for Borrowers for failure to prove amount due; Bank appealed arguing erroneous exclusion of business records prevented proof of indebtedness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the loan payment history was admissible under the business-records exception | Davis’s testimony established the four foundational elements (timeliness, source, ordinary course, regular practice) and she understood the bank’s system | Davis lacked employment during the relevant time and could not verify that historical policies/procedures matched current practice | Admissible: witness need not have been employed when entries were made if she understands the system and can establish the foundational elements |
| Whether Bank proved amount due without the payment history | The payment history was the primary means to prove balance; without it Bank lacked evidence to establish amount owed | Borrowers argued exclusion was proper and Bank did not meet its burden | Exclusion was reversible error because it prevented Bank from proving amount due, an element of foreclosure |
| Standard of review for exclusion of business records | N/A (argument framed around correctness) | N/A | Court reviews legal interpretation of hearsay/business-records exception de novo; applied here to correct trial court error |
| Whether trial court’s exclusion warranted new trial | Bank argued exclusion was prejudicial and required remand | Borrowers urged affirmance of judgment | Court reversed and remanded for new trial due to erroneous exclusion of evidence |
Key Cases Cited
- Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825 (Fla. 3d DCA 2014) (lists elements plaintiff must prove in foreclosure)
- Ernest v. Carter, 368 So. 2d 428 (Fla. 2d DCA 1979) (foreclosure elements)
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014) (amount owed must be proved by competent witness authenticating records)
- Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012) (business-records foundation satisfied by witness with personal knowledge of record-keeping and payment application processes)
- Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011) (witness offering records must show each requirement for foundation)
- Olesky ex rel. Estate of Olesky v. Stapleton, 123 So. 3d 592 (Fla. 2d DCA 2013) (trial court’s legal interpretation reviewed de novo)