Mazine v. M & I Bank
67 So. 3d 1129
| Fla. Dist. Ct. App. | 2011Background
- Foreclosure action against Mazine and Bouskila; amended final judgment in favor of M & I Bank; bank admitted documents without proper foundation and was not shown to hold the note/mortgage; standing to foreclose required either possession of the note or lawful rights of a holder; trial relied on an inadmissible affidavit as the sole evidence of default; bank’s witness had no knowledge of document preparation or possession; court reversed and remanded for proper foundation and standing analysis.
- Promissory note is negotiable and mortgage security; authority requires holder or nonholder in possession with rights to foreclose; standing requirements cited from Florida case law.
- Bank attempted to admit an affidavit of indebtedness as a business record; foundation lacking under § 90.803(6) and case law; witness could not establish regular business record foundation.
- Trial court admitted the affidavit despite lack of personal knowledge and business-record showing; improper admission harmed the defense since it was the sole evidence of amount due.
- Amended judgment reversed for lack of standing and proper foundation; remand to determine ownership/possession of note and mortgage and admissibility of records.
- Court notes substitution-motion were not acted on; issues of standing require clear demonstration that M & I Bank (or its successor) possessed the note and mortgage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose proved | M&I Bank held the note and mortgage. | M&I Bank did not prove possession/ownership of the note. | Reversed for lack of standing. |
| Admissibility of affidavit of indebtedness | Affidavit is a permissible business record. | No proper foundation or custodian testimony; not shown to be regular business record. | Admissibility error; harmful. |
| Foundation for business records required | Foundation not fully argued but admissibility assumed. | Foundation not established under §90.803(6) and case law. | Foundation lacking; error. |
| Procedural posture and substitution issue | Motion to substitute parties may affect standing. | Substitution not decided; not binding on standing. | Remand for proper standing analysis; substitution still unresolved. |
Key Cases Cited
- Servedio v. U.S. Bank Nat. Ass’n, 46 So.3d 1105 (Fla. 4th DCA 2010) (standing to foreclose requires ownership or rights of a holder)
- Taylor v. Deutsche Bank Nat. Trust Co., 44 So.3d 618 (Fla. 5th DCA 2010) (holder or in possession with rights can foreclose)
- Terra Firma Holdings v. Fairwinds Credit Union, 15 So.3d 885 (Fla. 2d DCA 2009) (proof of default must be competent evidence)
- Khan v. Bank of America, N.A., 58 So.3d 927 (Fla. 5th DCA 2011) (standing to foreclose requires possession of note/mortgage)
- Philogene v. ABN Amro Mtg. Group, Inc., 948 So.2d 45 (Fla. 4th DCA 2006) (standing to foreclose; note and mortgage ownership)
- Yisrael v. State, 993 So.2d 952 (Fla.2008) (foundation requirements for business records)
- Forester v. Norman Roger Jewell & Brooks, 610 So.2d 1369 (Fla. 1st DCA 1992) (necessity of foundation for business records)