Natacha Peuguero and Angelo Peuguero v. Bank of America, N.A.
169 So. 3d 1198
Fla. Dist. Ct. App.2015Background
- Natacha and Angelo Peuguero executed a note and mortgage in 2007 and defaulted by 2009; Countrywide filed a foreclosure complaint in August 2009 attaching an unendorsed copy of the note and a lost-note count.
- Countrywide merged into Bank of America (the Bank); an amended complaint in 2011 attached the note with an allonge showing multiple undated endorsements ending in a blank endorsement.
- At trial the Bank offered a loan payment history (admitted via a Bank witness under the business-records exception) and called a witness who testified about recordkeeping and the amount owed, relying on a proposed final judgment that was never admitted.
- The trial court entered a final judgment of foreclosure for $697,807.36 in favor of the Bank.
- Appellants appealed, arguing the Bank’s witness was unqualified, Countrywide lacked standing when it filed suit, and the interest/damages were unsupported because the proposed judgment was not in evidence.
- The Fourth District affirmed standing and admissibility of the payment history but reversed and remanded on damages because the interest award was based on a document never admitted into evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of loan payment history (business-records hearsay exception) | Bank: witness familiar with recordkeeping; printout reflects ordinary-course records | Peuguero: witness unqualified; printout hearsay | Admitted — witness testimony sufficed to lay foundation under § 90.803(6) and precedent (Cayea) |
| Standing of original plaintiff (Countrywide) at time complaint filed | Bank: allonge + payment history + routine practice testimony show Countrywide held note pre-filing | Peuguero: allonge undated; insufficient proof endorsements made pre-filing | Countrywide had standing — payment history and witness testimony supported holder status pre-filing |
| Use of proposed final judgment as basis for damages | Bank: witness confirmed totals on proposed judgment were correct | Peuguero: proposed judgment not admitted; witness testimony about it is inadmissible hearsay | Reversed as to amount — proposed judgment was not in evidence; interest award unsupported |
| Remedy for unsupported damages evidence | Bank: overall evidence and witness testimony justify remand or judgment | Peuguero: judgment should be vacated or dismissed without proper evidence | Remanded for determination of correct amounts owed (not involuntary dismissal) — further proceedings to establish damages accurately |
Key Cases Cited
- Yisrael v. State, 993 So. 2d 952 (Fla. 2008) (elements of business-records exception)
- Cayea v. CitiMortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014) (qualified witness may lay foundation for computerized loan records)
- Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012) (witness familiarity with record systems supports admission)
- Glarum v. LaSalle Bank Nat’l Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011) (no per se rule excluding prior servicer computerized records)
- Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015) (accuracy indicia for prior servicer records)
- Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015) (contractual/verification links between servicers can establish reliability)
- WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005) (admission of amounts owed based on prior holder’s accounting systems)
- McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170 (Fla. 4th DCA 2012) (standing is judged at time suit filed)
- Feltus v. U.S. Bank Nat’l Ass’n, 80 So. 3d 375 (Fla. 2d DCA 2012) (endorsement-in-blank requires proof it occurred before filing)
- Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280 (Fla. 2d DCA 2014) (document identified but not admitted cannot support judgment)
- Sas v. Federal Nat’l Mortg. Ass’n, 112 So. 3d 778 (Fla. 2d DCA 2013) (witness testimony unsupported by business records insufficient)
- Beauchamp v. Bank of New York, 150 So. 3d 827 (Fla. 4th DCA 2014) (distinguishing remand vs dismissal when damages proof inadequate)
- Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011) (remand for new damages determination when documentary support erroneous)
- People’s Trust Ins. Co. v. Roddy, 134 So. 3d 1071 (Fla. 4th DCA 2013) (routine practice evidence admissible under § 90.406)
- Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594 (Fla. 1st DCA 2007) (inference from organizational routine practice)