Ocwen Loan Servicing, LLC v. Gundersen
204 So. 3d 530
| Fla. Dist. Ct. App. | 2016Background
- Ocwen filed an amended mortgage foreclosure complaint and presented Ocwen employee Harrison Whittaker at trial to authenticate loan records.
- Whittaker testified about Ocwen’s boarding process for integrating prior servicer (GMAC/GMAG) records into Ocwen’s systems, describing verification, checks and balances, and that unverifiable items were not entered.
- Ocwen introduced the original note (endorsed in blank) and sought to admit a “looking‑glass” screenshot and other loan records derived from the prior servicer’s files.
- Appellees objected for lack of foundation; the trial court excluded those records because Whittaker lacked personal knowledge of GMAC’s recordkeeping or direct participation in the boarding process.
- After exclusion of the records, the trial court granted an involuntary dismissal; Ocwen’s motion for rehearing was denied and the court found the witness had not sufficiently verified accuracy of prior servicer data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior‑servicer records under business‑records exception | Ocwen: Whittaker’s testimony about Ocwen’s boarding and verification procedures supplied sufficient foundation to treat acquired records as Ocwen’s business records | Appellees: Whittaker lacked personal knowledge of GMAC’s systems and who entered/verified the prior records, so foundation is insufficient | Reversed: witness’s testimony about verification procedures and firsthand observation of data entry satisfied foundation; records admissible |
| Whether successor servicer must produce prior servicer employee to authenticate records | Ocwen: Not required; successor’s witness familiar with boarding can authenticate integrated records | Appellees: Prior servicer employee needed to show how records were prepared | Reversed: prior servicer employee not necessary where successor shows procedures for checking accuracy |
| Standard for trial court review of evidence exclusion | Ocwen: Exclusion was an abuse of discretion given controlling precedent | Appellees: Court acted within discretion based on witness gaps | Reversed: admissibility reviewed for abuse of discretion; here exclusion was an abuse of discretion |
| Effect of exclusion on case disposition (involuntary dismissal) | Ocwen: Exclusion of key business records undermined plaintiff’s case and required reversal of dismissal | Appellees: Exclusion justified dismissal due to lack of proof | Reversed: dismissal vacated and case remanded for further proceedings |
Key Cases Cited
- Tengbergen v. State, 9 So.3d 729 (Fla. 4th DCA 2009) (standard of review for admissibility is abuse of discretion)
- Burkey v. State, 922 So.2d 1033 (Fla. 4th DCA 2006) (hearsay determinations are reviewed de novo)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (elements required for business‑records exception)
- Bank of N.Y. v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015) (successor servicer may authenticate prior servicer records after verification)
- Cayea v. CitiMortgage, Inc., 138 So.3d 1214 (Fla. 4th DCA 2014) (authenticating witness need not be the preparer of records)
- Cooper v. State, 45 So.3d 490 (Fla. 4th DCA 2010) (testifying witness need not have prepared business records)
- Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209 (Fla. 6th DCA 2016) (no requirement that witness be employed by prior servicer)
- Le v. U.S. Bank, 165 So.3d 776 (Fla. 5th DCA 2015) (successor servicer testimony can satisfy foundation)
- Holt v. Calchas, LLC, 155 So.3d 499 (Fla. 4th DCA 2015) (procedures to check accuracy of prior records suffice for admissibility)
- Love v. Garcia, 634 So.2d 158 (Fla. 1994) (once foundation laid, opponent bears burden to prove records untrustworthy)
- Deutsche Bank Trust Co. Americas v. Frias, 178 So.3d 505 (Fla. 4th DCA 2015) (successor servicer’s verification testimony can authenticate acquired records)