191 So. 3d 981
Fla. Dist. Ct. App.2016Background
- Bank of New York Mellon (successor trustee) sued Jimmy Michel to foreclose a mortgage and adjustable-rate note after alleged default beginning August 1, 2008.
- Trial was held April 30, 2014; Nationstar employee Jose Perez testified as the servicer’s default-case specialist.
- The trial court admitted loan documents, payment history, and notice of default as business records over hearsay objections.
- Perez testified (after being prevented from using the bank’s proposed judgment) to totals shown on his cell phone: principal $298,155.99 and interest figures totaling roughly $69,776; he did not explain interest calculations or rates.
- The final judgment awarded principal $298,155.99, interest in two segments (including $68,187.36 from 8/1/2008–2/12/2014), and attorney’s fees of $4,140.
- On appeal Michel challenged (1) admissibility foundation for business records, (2) sufficiency of evidence for principal, interest, and attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Michel) | Defendant's Argument (Bank) | Held |
|---|---|---|---|
| Foundation for business-records admissibility | Perez lacked personal knowledge of prior servicer’s practices and didn’t participate in boarding, so records inadmissible | Perez described Nationstar’s independent boarding/verification; personal knowledge of prior servicer not required | Admissibility proper; trial court did not abuse discretion |
| Sufficiency of evidence for principal balance | Principal award unsupported because it exceeds original loan amount | Payment history shows negative amortization (unpaid interest capitalized) supporting increased principal | Principal award supported by payment history; affirmed |
| Sufficiency of evidence for interest amount | Interest award not supported because bank failed to prove applicable variable rates or show calculation | Bank argued award approximates interest computed at minimum rate and otherwise relied on trial testimony/cell-phone amount | Interest award reversed; remanded to calculate interest using contract’s minimum rate (3.525%) because competent evidence only supported minimum rate |
| Attorney's fees award | Fees are part of judgment (bank’s position: entitlement and amount established) | Bank offered no evidentiary proof at trial of hours, rate, or fee total beyond general testimony | Fee award reversed without remand because record lacked competent substantial evidence to support amount |
Key Cases Cited
- OneWest Bank, FSB v. Jasinski, 173 So. 3d 1009 (Fla. 2d DCA 2015) (business-records foundation for loan documents can be satisfied without personal knowledge of prior servicer)
- WAMCO XXVIII, Ltd. v. Integrated Elec. Env'ts, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005) (business-records admissibility principles)
- Le v. U.S. Bank, 165 So. 3d 776 (Fla. 5th DCA 2015) (admissibility of loan servicing records under business-records exception)
- Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015) (business-records foundation for servicer records)
- Doyle v. CitiMortgage, Inc., 162 So. 3d 340 (Fla. 2d DCA 2015) (payment history can support award of increased principal due to negative amortization)
- Peuguero v. Bank of Am., N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015) (insufficient evidence of interest award requires reversal/remand)
- Salauddin v. Bank of Am., N.A., 150 So. 3d 1189 (Fla. 4th DCA 2014) (remedy: calculate post-default interest using contractual minimum rate when only minimum rate is supported)
- Boyette v. BAC Home Loans Servicing, LP, 164 So. 3d 9 (Fla. 2d DCA 2015) (discussion of remand and calculation of interest under minimum rate)
- Colson v. State Farm Bank, F.S.B., 183 So. 3d 1038 (Fla. 2d DCA 2015) (reverse attorney-fee award without remand when record lacks competent evidence)
- Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So. 3d 958 (Fla. 4th DCA 2014) (same principle for attorney-fee proof)
- Wagner v. Bank of Am., N.A., 143 So. 3d 447 (Fla. 2d DCA 2014) (remand for evidentiary hearing on fees when affidavit or evidence presented)
Affirmed in part, reversed in part, and remanded: judgment of foreclosure affirmed except interest and attorney's fees; interest recalculated at minimum rate and attorney's fees vacated.