173 So. 3d 1009
Fla. Dist. Ct. App.2015Background
- Jasinski executed a promissory note and mortgage in 2005; PrivateBank transferred the loan to IndyMac in Feb. 2006. Jasinski defaulted in 2009 and OneWest later acquired IndyMac’s assets and servicing rights.
- Jasinski moved for summary judgment asserting PrivateBank had executed a release of the mortgage on Feb. 7, 2006, discharging the debt before transfer to IndyMac/OneWest.
- OneWest opposed with an affidavit from an assistant secretary stating Jasinski continued making payments through March 2009 and later filed a reconsideration affidavit from Rebecca Marks (OneWest supervisor) asserting OneWest acquired the loan and that PrivateBank did not own/was not authorized to release the mortgage on Feb. 7, 2006.
- The trial court initially granted Jasinski’s summary judgment, allowed OneWest 20 days to show a genuine issue of material fact, then later entered final judgment for Jasinski after finding Marks’ affidavit hearsay and not satisfying the business-records exception.
- The appellate court reviewed whether Marks’ affidavit met Florida Rule of Civil Procedure 1.510(e) and the business-records hearsay exception (Fla. Stat. § 90.803(6)) and whether it created a genuine issue of material fact about the release’s validity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Marks’ affidavit was admissible and sufficient to create a genuine issue of material fact about the validity of the 2006 release | The release executed by PrivateBank satisfied the mortgage so Jasinski is entitled to summary judgment | Marks’ affidavit shows OneWest acquired IndyMac’s loan records and that PrivateBank lacked authority to release the mortgage, creating a genuine factual dispute | Reversed: Marks’ affidavit met Rule 1.510(e) and §90.803(6) foundation and was sufficient to defeat summary judgment |
Key Cases Cited
- Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012) (explains business-records admissibility under §90.803(6))
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (standards for business-records exception)
- Bank of N.Y. v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015) (record custodian need not be the preparer but must show foundation for business records)
- Hall v. Talcott, 191 So.2d 40 (Fla. 1966) (affidavits opposing summary judgment need not include all trial formalities)
- Gonzalez v. Chase Home Fin. LLC, 37 So.3d 955 (Fla. 3d DCA 2010) (movant held to strict standard on summary judgment; opposing papers construed leniently)
- Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256 (Fla. 2002) (appellate review of summary judgment viewed in light most favorable to nonmoving party)
- Seigler v. Bell, 148 So.3d 473 (Fla. 5th DCA 2014) (distinguishes motions for rehearing and reconsideration; nomenclature does not control)