Deutsche Bank National Trust Co. v. De Brito
235 So. 3d 972
| Fla. Dist. Ct. App. | 2017Background
- In 2006 Alfredo Brito executed an adjustable-rate, negative-amortization mortgage (the Note); Maria de Brito (Appellee) executed the mortgage with him.
- Payments remained flat for ~2.5 years; in August 2008 a payment was returned by servicer Ocwen. A demand letter was sent in June 2010. No cure followed.
- Deutsche Bank (the Bank) sued to foreclose in August 2011. Appellee raised multiple affirmative defenses but did not allege lack of notice of rate/payment change as a basis for foreclosure defense.
- At a two‑day bench trial Ocwen’s witness (Blanchard) testified about boarding, servicing, the payment history, and the default/demand letter; the Note, demand letter, and a payment/payoff printout were admitted at trial by stipulation or testimony.
- Approximately three weeks after trial the court entered final judgment granting Appellee’s motion for involuntary dismissal, ruling the Bank failed to prove default because the documents/testimony were hearsay and insufficiently founded; the trial court relied on an unrelated judge’s ruling.
- The district court reversed, holding the business‑records exception was satisfied and the Bank proved default; it also held Appellee waived any defense that notice of rate/payment change was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of loan records under business‑records exception | Bank: Blanchard’s testimony authenticated payment history, demand letter, and payoff printout as business records of Ocwen (successor) | Appellee: Records/testimony were hearsay and lacked foundation because Blanchard wasn’t familiar with prior vendor’s practices | Held: Reversed trial court — Blanchard’s testimony met requirements for business‑records exception; records admissible |
| Can successor servicer authenticate predecessor records without prior vendor personnel | Bank: Successor may integrate and authenticate acquired records; witness need not be original preparer | Appellee: Authentication inadequate without prior vendor witness | Held: Successor’s witness need not be original preparer; integration and familiarity suffice to admit records |
| Proof of default / nonpayment | Bank: Payoff/printout and payment history show payments after June 2008 not made; demonstrates default | Appellee: Bank failed to prove default because records were inadmissible hearsay | Held: Payoff printout and payment history admissible and sufficient to prove default |
| Requirement to prove notice of interest‑rate or payment changes | Bank: Note does not require notice; issue was not pleaded — waived | Appellee: Trial court imposed burden to show notice of rate/payment change | Held: Issue was waived (not raised in affirmative defenses) and Note contained no notice requirement; trial court erred imposing that burden |
Key Cases Cited
- Yisrael v. State, 993 So. 2d 952 (discussing elements of business‑records exception)
- Deutsche Bank Trust Co. Ams. v. Frias, 178 So. 3d 505 (successor‑servicer authentication principle)
- Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (witness need not have prepared records to authenticate)
- Cayea v. CitiMortgage, Inc., 138 So. 3d 1214 (familiarity with boarding/process sufficient for foundation)
- Bank of New York v. Calloway, 157 So. 3d 1064 (treatment of acquired records as successor business records)
- Bank of New York Mellon v. Johnson, 185 So. 3d 594 (integration of predecessor’s records into successor’s records)
- Ocwen Loan Servicing, LLC v. Gundersen, 204 So. 3d 530 (successor servicer need not be prior servicer’s employee to authenticate)
- Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164 (trial printouts admissible with proper witness foundation)
- Wells Fargo Bank, N.A. v. Eisenberg, 220 So. 3d 517 (precedent on business‑records foundation and successor servicer records)