NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
G. SCOTT RICHARD, )
)
Appellant, )
)
v. ) Case No. 2D18-4599
)
ASSET MANAGEMENT WEST 15, LLC,)
)
Appellee. )
________________________________ )
Opinion filed December 4, 2019.
Appeal from the Circuit Court for
Hillsborough County; Gregory P. Holder,
Judge.
Ryan C. Torrens of Torrens Law Group,
P.A., Tampa, and Charles E. Stoecker
and William L. Grimsley of McGlinchey
Stafford, Fort Lauderdale, for Appellant.
Alex L. Braunstein of LeClair Ryan PLLC,
West Palm Beach, for Appellee.
NORTHCUTT, Judge.
G. Scott Richard challenges a final summary judgment of foreclosure in
favor of Asset Management West 15. Richard raises several appellate issues, but we
find merit only in his assertion that there was insufficient evidentiary support for the
amount awarded in the judgment. We agree with him on this point and remand for
further proceedings.
The judgment amount was based on figures set forth in the affidavit of
Kenan Thayer, a manager for Asset Management. However, Thayer did not attach any
business records to his affidavit, and there is nothing in the court record to support the
amounts claimed in the affidavit. Richard filed a response to Asset Management's
motion for summary judgment in which he contested the amounts claimed to be due
and owing in Thayer's affidavit, including the principal, the accrued unpaid interest, and
the late charges. At the hearing on the motion for summary judgment, Richard argued
that Thayer's affidavit, without business records attached, was insufficient evidence of
the amount owed. He also argued that the affidavit would have been hearsay even if
the business records had been attached because the previous servicer's records were
not verified by way of a sworn affidavit.
In another mortgage foreclosure case, Wolkoff v. American Home
Mortgage Servicing, Inc.,
153 So. 3d 280, 281 (Fla. 2d DCA 2014), this court held that
there was insufficient evidence to support the indebtedness amount found. At the
bench trial in that case, the representative for American Home Mortgage "merely
confirmed that the totals given to him on a proposed final judgment 'seemed accurate.' "
Id. No business records were submitted into evidence.
Id. This court stated:
It is axiomatic that the party seeking foreclosure must
present sufficient evidence to prove the amount owed on the
note. Typically[,] a foreclosure plaintiff proves the amount of
indebtedness through the testimony of a competent witness
who can authenticate the mortgagee's business records and
confirm that they accurately reflect the amount owed on the
mortgage. Thereafter, the business records are admitted
into evidence.
Id. at 281. Here, no business records were attached to Thayer's affidavit, and there was
no authentication of any business records. Thayer's affidavit, standing alone, could not
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establish the amount of Richard's indebtedness, and it was an insufficient basis for the
summary judgment.
Reversed and remanded for further proceedings.
LaROSE and SMITH, JJ., Concur.
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