Kristy S. Holt v. Calchas, LLC
155 So. 3d 499
| Fla. Dist. Ct. App. | 2015Background
- Foreclosure action originally filed by Wells Fargo Bank, N.A.; Holt raised affirmative defenses including lack of required default notices and cure opportunities.
- Loans were assigned: Wells Fargo to Consumer Solutions, then to Calchas, LLC; Holt faced a substituted plaintiff during litigation.
- Trial proceeded with two judges due to recusal; Holt had different counsel partway through, leaving the trial mid-stream.
- Bank sought to admit Holt’s payment history under the business records exception; Holt objected to hearsay; asset manager testified without direct knowledge of prior servicers’ records.
- After the bank rested, Holt moved to dismiss for failure to prove compliance with paragraph 22 of the mortgage; trial court relied on court-file affidavits to show compliance.
- Fourth District reversed in part, holding the payment history was improperly admitted and, more importantly, that there was insufficient proof of notice/compliance under paragraph 22, leading to dismissal and remand for entry of judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of note, mortgage, and assignment | Holt argues admissibility of the copies was improper. | Bank contends admissible via stipulation or business records. | No merit; affirmed without discussion on this point. |
| Compliance with paragraph 22 notice | Affidavits in court file show compliance; but no admissible evidence of mailed notice. | Court took judicial notice of the file, presumed compliance. | Insufficient evidence of compliance; dismissal required. |
| Admission of payment history over hearsay objection | Asset manager lacked proper foundation to admit business records from prior holders. | Records were admissible under business records exception and 90.902(11) certifications. | Error in admitting payment history; requires dismissal rather than remand. |
Key Cases Cited
- Burgess v. State, 831 So. 2d 137 (Fla. 2002) (courts may take judicial notice but evidence remains subject to rules of evidence)
- Stoll v. State, 762 So. 2d 870 (Fla. 2000) (standard for judicial notice in criminal proceedings guiding use of court files)
- Glarum v. LaSalle Bank National Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011) (insufficient foundation for business records exception when witness lacks knowledge of data-entry process)
- Weisenberg v. Deutsche Bank National Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012) (distinguishes proper foundation when witness knows bank’s record-keeping system)
- WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005) (admissibility of records from previous note holder when current holder validates procedures)
- Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014) (general testimony about industry practices insufficient; need personal knowledge foundation)
- Arqquelles v. State, 842 So. 2d 939 (Fla. 4th DCA 2003) (verbal acts as evidence of legal consequences separate from truth of assertions)
- Sas v. Fed. Nat’l Mortg. Ass’n, 112 So. 3d 778 (Fla. 2d DCA 2013) (remand for proper evidentiary foundation to establish amounts due)