Bank of New York Mellon v. Johnson
185 So. 3d 594
| Fla. Dist. Ct. App. | 2016Background
- Bank of New York Mellon appeals involuntary dismissal in a foreclosure against Donna D.-Johnson.
- Trial court excluded BOA records as hearsay and deemed the default notice non-compliant with paragraph 22.
- Promissory note and mortgage date to July 24, 2006; default occurred August 1, 2009; foreclosure suit filed May 24, 2010; non-jury trial September 12, 2014.
- SPS employee testified about onboarding, data transfer, and a 650-point quality control process for loan data from prior servicers.
- SPS offered records from prior servicer Bank of America but the trial court sustained hearsay objections, then admitted a November 9, 2009 default letter.
- Appellee obtained involuntary dismissal; appellate court reversed, holding substantial compliance of the default letter and admissibility of prior-servicer records, remanding for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Paragraph 22 compliance | Trust argues default letter substantially complies with paragraph 22. | Johnson argues the letter fails to inform rights and is prejudicial. | Default letter substantially complies. |
| Admission of prior servicer records | Trust asserts proper business records foundation was shown for BOA records. | Johnson contends records were improperly excluded and inadmissible. | Trial court abused by excluding records; admissibility satisfied under business records. |
Key Cases Cited
- Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (Fla. 5th DCA 2014) (substantial noncompliance when notice lacks reinstatement right)
- Milam v. Green Tree Servicing, LLC, 177 So.3d 7 (Fla. 2d DCA 2015) (substantial compliance; no prejudice from minor deviations)
- Bank of New York v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015) (records from prior servicer can be admitted when foundations met)
- Berdecia v. Nationstar Mortgage, LLC, 169 So.3d 209 (Fla. 5th DCA 2015) (witness need not be the preparer; familiarity with boarding process ok)
- Le v. U.S. Bank, 165 So.3d 776 (Fla. 5th DCA 2015) (acceptance of records with proper foundation)
- Bank of N.Y. Mellon v. Nunez, 180 So.3d 160 (Fla. 3d DCA 2015) (paragraph 22 notice is a condition precedent to foreclosure)
- Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011) (pre-foreclosure notice requirements govern foreclosure actions)