Lloyd Steve Burdeshaw and Teresa Burdeshaw v. The Bank of New York Mellon etc.
148 So. 3d 819
| Fla. Dist. Ct. App. | 2014Background
- Burdeshaws signed a $600,000 note and mortgage with Bay Bank & Trust Co., later assigned to MERS.
- Suntrust Mortgage filed a foreclosure in 2009 alleging ownership of the note and mortgage.
- BNYM substituted as plaintiff in 2013 and a bench trial occurred in 2013.
- Plaintiff relied on Composite Exhibit 3, a computer printout, to prove the payoff balance of $822,677.79, authenticated by Nancy Johnson as Suntrust’s records custodian.
- Burdeshaws repeatedly objected to the admissibility of the printout and its authentication; objections to the custodian and predicate were overruled.
- The trial court entered a final judgment for foreclosure based on the printout; the court later reversed and remanded for dismissal due to lack of admissible evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Composite Exhibit 3 was properly admissible as a business record | BNYM contends the printout is a admissible business record. | Burdeshaws argue no proper predicate or custodian foundation. | Reversible error; no proper business-record foundation. |
| Whether the amount due was proven by competent, authenticated evidence | Johnson’s testimony authenticated the printout as the amount due. | No foundation that the records were prepared properly or kept in the ordinary course. | Insufficient proof of the amount due; judgment vacated. |
| Whether Rule 1.420(e) dismissal for lack of prosecution required dismissal | Motion to dismiss was taken under advisement but later ignored; standing. | Rule 1.420(e) mandates dismissal when no activity for the specified period. | Remand for dismissal; mandatory dismissal affirmed. |
| Whether the sufficiency issue was preserved for review | Objections preserved sufficiency grounds through standing objection. | Objections waived; only post hoc challenge. | Sufficiency challenge properly preserved and reviewed. |
Key Cases Cited
- Cayea v. CitiMortgage, Inc., 138 So.3d 1214 (Fla. 4th DCA 2014) (bank records properly authenticated to prove amount due)
- Lindsey v. Cadence Bank, N.A., 135 So.3d 1164 (Fla. 1st DCA 2014) (affidavit establishing system familiarity supports admissibility)
- Glarum v. LaSalle Bank N.A., 83 So.3d 780 (Fla. 4th DCA 2011) (records without proper authentication are inadmissible)
- Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012) (knowledge of the bank’s record-keeping system is required for business records)
- Mazine v. M&I Bank, 67 So.3d 1129 (Fla. 1st DCA 2011) (improper affidavit about amounts requires reversal)
- Hunter v. Aurora Loan Servicing, LLC, 137 So.3d 570 (Fla. 1st DCA 2014) (business records foundation required for transferred loan documents)
- Corona v. State, 64 So.3d 1232 (Fla. 2011) (specific grounds for objection are not limited to 'magic words')