Nationstar Mortgage, LLC v. Berdecia
169 So. 3d 209
Fla. Dist. Ct. App.2015Background
- In 2009 CitiMortgage filed foreclosure against Jose and Carmen Berdecia based on a 2006 loan; while the suit was pending Nationstar became the loan servicer and substituted as plaintiff.
- Borrowers asserted, among other defenses, that they had paid the amounts due; trial was nonjury and Nationstar sought to admit mortgage records originally prepared by CitiMortgage.
- Nationstar called Ruth Willoughby, a Nationstar default case specialist (formerly employed by CitiMortgage), to lay a business‑records foundation and to explain Nationstar’s "boarding" process for integrating prior‑servicer records.
- The trial court sustained Borrowers’ hearsay objection and excluded three documents (payment history printout, payoff quote, and CitiMortgage breach letter), finding Nationstar had not laid a proper predicate under the business‑records exception.
- On appeal the Fifth District reversed, holding Willoughby’s testimony sufficiently established the business‑records predicate and the trustworthiness of records transferred from a prior servicer, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (Nationstar) | Defendant's Argument (Berdecia) | Held |
|---|---|---|---|
| Admissibility of records from prior servicer under business‑records exception | Willoughby, as a qualified witness, testified records were made/kept in ordinary course, Nationstar verified and relied on prior servicer’s records via boarding | Records are hearsay; Nationstar failed to call the person who actually boarded or the original records custodian so predicate was insufficient | Reversed: successor servicer’s witness can authenticate prior‑servicer records if she shows the business‑records requirements, the successor relies on them, and circumstances show trustworthiness |
| Whether witness must be the person who prepared or boarded records | Not required; witness need only be sufficiently familiar with record‑keeping/boarding and reliance practices | Borrowers argued only original creator or boarder can authenticate | Held that the authenticating witness need not be the original preparer; familiarity with systems and verification suffices |
| Standard for admitting third‑party records integrated into successor’s system | Nationstar argues successor may treat imported records as its own if it verifies accuracy or has incentives to rely on them | Borrowers contend mere reliance is insufficient without proof of prior servicer’s processes | Court: admissible if business‑records elements met and either contractual/business relationship or independent verification establishes trustworthiness |
| Effect of excluding records on foreclosure proof | Nationstar: exclusion prevented proof of default/amounts owing, requiring reversal | Borrowers: exclusion proper; records untrustworthy | Court held exclusion was error and remanded for new trial |
Key Cases Cited
- Bank of New York v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015) (successor servicer may authenticate prior‑servicer records where trustworthiness and business‑records elements are shown)
- Le v. U.S. Bank, 165 So.3d 776 (Fla. 5th DCA 2015) (current servicer’s witness sufficiently founded admission of prior‑servicer payment history after testifying to boarding/verification)
- WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2d DCA 2005) (payment history from prior servicer admissible where verified by successor)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (elements and permissible formats for business‑records exception)
- Twilegar v. State, 42 So.3d 177 (Fla. 2010) (qualified witness familiar with record‑keeping system can lay business‑records foundation)