Evans v. HSBC Bank, USA, National Association
223 So. 3d 1059
| Fla. Dist. Ct. App. | 2017Background
- In 2006 Evans executed a note and mortgage; after default in 2009 HSBC (noteholder/servicer) sued to foreclose.
- Evans asserted affirmative defenses and a trespass counterclaim; the trial court dismissed the counterclaim with prejudice for lack of particularity.
- At a 2014 bench trial HSBC introduced a 25‑page payment history compiled from records of multiple servicers through PHH witness Angela Stubblefield.
- Stubblefield testified from PHH records but lacked knowledge of prior servicers’ procedures or of the accuracy of the records before they were transferred into PHH’s system.
- The trial court admitted the payment history over objection and entered final judgment for HSBC; the court did not admit the proposed final judgment as an exhibit.
- On appeal the parties agreed reversal was required as to (1) legal sufficiency of evidence to establish the amount owed and (2) dismissal of the trespass counterclaim; the parties disputed the proper remedy for the damages deficiency.
Issues
| Issue | Plaintiff's Argument (HSBC) | Defendant's Argument (Evans) | Held |
|---|---|---|---|
| Admissibility of payment history as business records / proof of damages | Payment history is a business record transferred to PHH and admissible; Stubblefield’s testimony establishes amount owed | Stubblefield lacked foundation and personal knowledge—payment history is inadmissible hearsay | Admission was erroneous; payment history did not meet §90.803(6)(a) safeguards and evidence of damages was legally insufficient |
| Appropriate remedy for insufficient damages proof | Remand for further proceedings so HSBC can establish amount owed | Dismissal of foreclosure because HSBC failed to prove damages at trial | Remand for further proceedings to determine amount owed (trial court to allow proper proof) |
| Dismissal of trespass counterclaim | Dismissal for lack of particularity was proper | Dismissal with prejudice was improper; Evans should be allowed to amend | Reversed; dismissal without leave to amend was error—Evans must be permitted to file an amended counterclaim |
| Admission of proposed final judgment as substantive evidence | (Implicit) proposed judgment and witness testimony established indebtedness | Proposed judgment not admitted into evidence and cannot supply substantive proof | A proposed final judgment not admitted into evidence cannot support damages (citing Wolkoff) |
Key Cases Cited
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA) (proposed final judgment not competent evidence of indebtedness)
- Sas v. Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778 (Fla. 2d DCA) (where some but inadmissible evidence exists, remand to determine damages is appropriate)
- Beauchamp v. Bank of N.Y., 150 So. 3d 827 (Fla. 4th DCA) (distinguishing complete failure of proof from insufficient proof)
- Yisrael v. State, 993 So. 2d 952 (Fla.) (business‑record foundational requirements)
- Landmark Am. Ins. Co. v. Pin‑Pon Corp., 155 So. 3d 432 (Fla. 4th DCA) (magic words insufficient; witness must lay factual foundation)
- Morton's of Chi., Inc. v. Lira, 48 So. 3d 76 (Fla. 1st DCA) (appellate guidance on retrial opportunities after failure of proof)
- Peuguero v. Bank of Am., N.A., 169 So. 3d 1198 (Fla. 4th DCA) (affirming foreclosure but remanding to establish amounts owed)
- Strader v. Carpenters Crest Owners Ass'n, Inc., 968 So. 2d 621 (Fla. 2d DCA) (leave to amend a dismissed counterclaim is required in appropriate cases)