187 So. 3d 245
Fla. Dist. Ct. App.2016Background
- Bank of America (BOA) sued to foreclose Appellants’ mortgage; Green Tree Servicing, LLC was later substituted as plaintiff/servicer.
- At trial Green Tree’s witness testified about BOA business records showing (1) a notice of default mailed Jan. 10, 2013, and (2) a caller-requested change-of-address to a P.O. box.
- Those underlying BOA records were not offered into evidence; Appellants objected as hearsay.
- Trial court allowed the witness’s oral testimony about the contents of the records over objection and entered final judgment of foreclosure.
- The Fifth District held that oral testimony about business-record contents not admitted into evidence is inadmissible hearsay and that, absent that testimony, Green Tree failed to prove BOA satisfied the mortgage’s pre-foreclosure notice requirements.
- The court reversed and remanded for Green Tree to actually introduce evidence that BOA mailed the notice of default and that Appellants requested the change of address.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of oral testimony recounting business-record contents | Witness testimony about BOA records was sufficient | Testimony was hearsay because the records were not admitted | Overruled: testimony was inadmissible hearsay; trial court erred in allowing it |
| Proof that BOA mailed the notice of default | BOA’s records (relayed by witness) show mailing occurred | No admissible evidence of mailing without the records themselves | Held insufficient proof; must introduce the business record showing mailing |
| Validity of mailing address / change-of-address evidence | Witness testimony that borrower requested change-of-address justified nonuse of property address | Oral testimony about the change-of-address record is hearsay absent the record | Trial court abused discretion; Green Tree must produce the change-of-address record |
Key Cases Cited
- LaMarr v. Lang, 796 So.2d 1208 (court discretion on admissibility)
- Dale v. Ford Motor Co., 409 So.2d 232 (trial court evidentiary discretion)
- Michael v. State, 884 So.2d 83 (rules of evidence limit discretion)
- Dominko v. Wells Fargo Bank, N.A., 102 So.3d 696 (mortgage paragraph 22 pre-suit notice requirement)
- Colon v. JP Morgan Chase Bank, NA, 162 So.3d 195 (paragraph 22 is a condition precedent)
- Samaroo v. Wells Fargo Bank, 137 So.3d 1127 (same)
- Bolin v. State, 736 So.2d 1160 (oral testimony cannot substitute for business records)
- Thompson v. State, 705 So.2d 1046 (business-records exception does not authorize hearsay about unadmitted records)
- Cardona v. Nationstar Mortg., LLC, 174 So.3d 491 (error where business records not introduced)
- Webster v. Chase Home Finance, LLC, 155 So.3d 1219 (trial court must require the actual change-of-address record; oral testimony insufficient)