Lindsey v. Cadence Bank, N. A.
135 So. 3d 1164
| Fla. Dist. Ct. App. | 2014Background
- Borrowers granted $400,000 loan secured by Franklin County mortgage in 2005; bank filed foreclosure and amount due claims in 2011 and amended in 2012; borrowers admitted some nonpayment but disputed the amount due; bank submitted amended affidavits from Wiley (business records foundation) and Bondurant (attorney time) with printed loan records; borrowers opposed arguing improper foundation and inadmissible hearsay; trial court granted summary judgment for bank and awarded approximately $452,500 including attorney’s fees; appellate court reverses part and remands for fee adjustments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of the amount-due affidavit under business records | Borrowers contend Wiley lacked foundation; printouts are hearsay. | Bank contends records meet business records exception; affiant knowledgeable about system. | Affirmed; Wiley's foundation sufficient; printouts admissible under business records exception. |
| Amount of Indebtedness as shown by the record | Wiley lacked competent foundation; hearsay issues. | Printouts admissible as business records; no counter-evidence. | Affirmed; summary judgment proper on amount due based on admissible records. |
| Attorney’s fees — sufficiency of evidence for ‘estimated time to complete’ | No competent substantial evidence for 3.5 hours; could not be charged at $175/hr. | Record shows some time entries; other tasks may have been done at lower rates. | Partially reversed; remove $612.50 (3.5 hours at $175) and remand for further proceedings on fees. |
Key Cases Cited
- Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780 (Fla. 4th DCA 2011) (employee lack of foundation for business records; data-entry knowledge questioned)
- Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012) (supervisor familiar with record-keeping foundation; sufficient to admit records)
- Monson v. Monson, 712 So.2d 770 (Fla. 1st DCA 1998) (fee-award via pre-hearing estimate; reverse for lack of actual-time support)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (requirements for business records foundation)
- Mazine v. M & I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (foundation for business-records exception; role of affiant)