Floyd v. Bank of America, N.A. , 2016 Fla. App. LEXIS 9669 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DANIELA FLOYD,
Appellant,
v. Case No. 5D13-4416
BANK OF AMERICA, N.A., ETC.,
Appellee.
________________________________/
Opinion filed June 24, 2016
Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.
Michael S. Wickenhauser, Kendrick
Almaguer and Alyssa Pickles, of The Ticktin
Law Group, P.A., Deerfield Beach, for
Appellant.
Mary L. Walter, Tricia J. Duthiers, J.
Randolph Liebler and Kristen A. Tajak, of
Liebler, Gonzalez & Portuondo, P.A.,
Miami, for Appellee.
PER CURIAM.
Daniela Floyd appeals the trial court’s final summary judgment of foreclosure. The
record indicates that there are genuine issues of material fact related to Bank of America’s
standing to foreclose and the admissibility of the evidence relied on by Bank of America
in its motion for summary judgment. Accordingly, we find that summary judgment was
inappropriate and remand for further proceedings.
The original note and mortgage, executed in 2006, identified Countrywide Home
Loans, Inc. (“Countrywide”) as the lender. After Floyd failed to make the payments
required by the note, BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans
Servicing, LP (“BAC”), sent Floyd a notice of default stating that it intended to accelerate
the note if the breach was not cured within thirty days. When Floyd failed to cure the
default, BAC filed a mortgage foreclosure complaint. BAC alleged that it was the servicer
of the loan, it had the authority to act on behalf of the owner in pursuing the action, and
all conditions precedent to the acceleration of the note and mortgage had been met. BAC
attached to its complaint copies of both the original note and mortgage. The copy of the
note included no blank or special indorsements.
After suit had been filed, MERS, as nominee for Countrywide and its successors
and assigns, assigned the mortgage to Bank of America, successor by merger to BAC.
Bank of America then filed a motion to substitute as party plaintiff, claiming that BAC had
merged into Bank of America after the filing of the complaint. The trial court granted this
motion and Bank of America moved for summary judgment, claiming that there were no
genuine issues of material fact. Along with its motion, Bank of America filed a supporting
affidavit from its officer, Dwayne Nuñez, as well as another copy of the note, which now
included an undated blank indorsement from Countrywide. The same indorsement also
appeared on the original note that Bank of America filed during the summary judgment
hearing. Following the hearing, the trial court entered final judgment of foreclosure in Bank
of America’s favor.
Summary judgment will be granted only if the movant shows “there is no genuine
issue as to any material fact, and that the moving party is entitled to a judgment as a
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Second, there was an insufficient foundation to admit Nuñez’s affidavit under the
business records exception to the hearsay rule. 1 In his affidavit, Nuñez indicated that he
had personal knowledge of Bank of America’s procedures for creating records and was
familiar with those records connected with Floyd’s loan. He also stated that the records
were made at or near the time of occurrence, by individuals with personal knowledge, in
the course of Bank of America’s regularly conducted business activities, and as Bank of
America’s regular practice. His affidavit stated that Bank of America was in possession of
the original note, and took delivery of the note after Countrywide indorsed the note in
blank but prior to the inception of the litigation.
Nuñez’s testimony at his deposition, however, shows that he lacked particular
knowledge of Bank of America’s record-keeping procedures and was not sufficiently
acquainted with Bank of America’s business practices to substantiate the data on the
1 Section 90.803(6)(a) sets out the business records exception and reads, in part:
(6) Records of regularly conducted business activity.--
(a) A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinion, or diagnosis, made at or near the
time by, or from information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business activity and if it
was the regular practice of that business activity to make such
memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, . . . unless the
sources of information or other circumstances show lack of
trustworthiness. . . .
§ 90.803(6)(a), Fla. Stat. (2013).
We review a trial court’s evidentiary ruling for an abuse of discretion. Hidden Ridge
Condo. Homeowners Ass’n v. Onewest Bank, N.A., 183 So. 3d 1266, 1268-69 (Fla. 5th
DCA 2016). The court’s discretion is limited, however, by the rules of evidence. Id. at
1269.
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v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012). Importantly,
standing must be established as of the date of the filing of the initial foreclosure complaint.
Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 322 (Fla. 5th DCA 2013); Green v.
JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013).
Bank of America relied on two pieces of evidence to establish its standing to
foreclose: 1) an assignment from MERS, as assignee for Countrywide and its successors
and assigns, to Bank of America, and 2) Nuñez’s affidavit, attempting to establish a
foundation to admit an indorsed copy of the note. Because the assignment is dated after
the filing of the complaint, though, it cannot prove that Bank of America had standing to
foreclose at the time of the complaint. Bank of America must, then, rely on Nuñez’s
affidavit to establish its standing to foreclose.
There are two problems with Nuñez’s affidavit. First, the affidavit does not resolve
all the material issues in this case. Floyd specifically raised as an issue the inconsistency
between the unindorsed copy of the note attached to the initial complaint and the original
indorsed note entered during the summary-judgment proceedings. Neither Nuñez nor
Bank of America offered any explanation as to why the blank indorsement appears on the
note filed at the hearing, but not on the copy filed with the complaint. BAC had admitted
in its response to Floyd’s request for admissions that the copy of the note attached to the
complaint, bearing no indorsements, was true and accurate, but Nuñez and Bank of
America continued to rely on the note entered at summary judgment. Therefore, we find
that a material issue remains as to when the note was indorsed and how Bank of America
obtained standing to bring its suit.
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Second, there was an insufficient foundation to admit Nuñez’s affidavit under the
business records exception to the hearsay rule. 1 In his affidavit, Nuñez indicated that he
had personal knowledge of Bank of America’s procedures for creating records and was
familiar with those records connected with Floyd’s loan. He also stated that the records
were made at or near the time of occurrence, by individuals with personal knowledge, in
the course of Bank of America’s regularly conducted business activities, and as Bank of
America’s regular practice. His affidavit stated that Bank of America was in possession of
the original note, and took delivery of the note after Countrywide indorsed the note in
blank but prior to the inception of the litigation.
Nuñez’s testimony at his deposition, however, shows that he lacked particular
knowledge of Bank of America’s record-keeping procedures and was not sufficiently
acquainted with Bank of America’s business practices to substantiate the data on the
1 Section 90.803(6)(a) sets out the business records exception and reads, in part:
(6) Records of regularly conducted business activity.--
(a) A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinion, or diagnosis, made at or near the
time by, or from information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business activity and if it
was the regular practice of that business activity to make such
memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, . . . unless the
sources of information or other circumstances show lack of
trustworthiness. . . .
§ 90.803(6)(a), Fla. Stat. (2013).
We review a trial court’s evidentiary ruling for an abuse of discretion. Hidden Ridge
Condo. Homeowners Ass’n v. Onewest Bank, N.A., 183 So. 3d 1266, 1268-69 (Fla. 5th
DCA 2016). The court’s discretion is limited, however, by the rules of evidence. Id. at
1269.
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affidavit. Nunez was also unaware of when the indorsement was placed on the note, or
even if that information was in Bank of America’s system. See Hunter v. Aurora Loan
Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014) (finding that the testimony of a witness
failed to establish the necessary foundation for admitting evidence under the business
records exception because the witness was unable to substantiate when the records were
made, whether the information they contained derived from a person with knowledge, or
whether the original owner regularly made such records); Glarum v. LaSalle Bank Nat’l
Ass’n, 83 So. 3d 780, 782-83 (Fla. 4th DCA 2011) (finding that an affidavit of a loan
servicing specialist was inadmissible hearsay because the specialist did not know who
entered the data that he relied on, whether the computer entries were accurate when
made, or how incorporated data from the prior loan servicer was derived).
Because genuine issues of material fact remain as to whether Bank of America
had standing at the time the complaint was filed and because Nuñez lacked the personal
knowledge required to admit Bank of America’s business records, we find the trial court
erred in granting summary judgment.
REVERSED AND REMANDED.
PALMER, COHEN and EDWARDS, JJ., concur.
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