Kimberly A. Ensler v. Aurora Loan Services, LLC ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KIMBERLY A. ENSLER,
Appellant,
v.
AURORA LOAN SERVICES, LLC,
Appellee.
No. 4D14-351
[October 28, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Senior Judge; L.T. Case No.
2008CA018626XXXXMB.
Donna Greenspan Solomon of Solomon Appeals, Mediation &
Arbitration, Fort Lauderdale, for appellant.
Nancy M. Wallace of Akerman, LLP, Tallahassee; William P. Heller of
Akerman LLP, Fort Lauderdale; and Brandon G. Forgione of Akerman LLP,
West Palm Beach, for appellee.
LEVINE, J.
Appellant appeals a final judgment of mortgage foreclosure entered in
favor of appellee Aurora Loan Services. Because we find that the trial court
erred in allowing the introduction of certain evidence, and that no final
judgment in favor of appellee could be entered without such evidence, we
reverse.
Aurora Loan Services, LLC, brought a foreclosure action against
Kimberly A. Ensler. Prior to trial, however, Nationstar Mortgage LLC was
substituted as the party plaintiff because a “service transfer” occurred
subject to a power of attorney.
At trial, Ensler objected to Nationstar introducing some of Aurora’s
business records into evidence. Ensler argued Nationstar’s witness, Fay
Janati, a litigation resolution analyst for Nationstar, did not have the
ability to identify and testify about Aurora’s breach letter, payment history,
and power of attorney. Janati conceded that she never visited any Aurora
office, never worked for Aurora, never spoke to any Aurora employee, and
did not have personal knowledge as to how Aurora processed payments,
kept its payment history, or compiled and stored its records. But Janati
nevertheless felt Aurora’s records were “accurate” because “[t]hey’re a
reputable big company and we trust them and they trust us.” The trial
court overruled Ensler’s objections. After Nationstar rested, Ensler moved
for an involuntary dismissal, which the trial court denied. The trial court
subsequently entered final judgment of foreclosure in favor of Aurora.
On appeal, Ensler argues that Nationstar did not satisfy the
requirements of the business records exception to hearsay. As a result,
the trial court erred in denying her motion for involuntary dismissal based
upon the lack of competent, substantial evidence concerning damages and
entitlement to foreclose.
“The standard of review for denial of a motion for involuntary dismissal
at trial is de novo.” Holt v. Calchas, LLC, 155 So. 3d 499, 503 (Fla. 4th
DCA 2015) (citation omitted).
The elements to prove that evidence is admissible under the business
records exception of section 90.803(6)(a), Florida Statutes (2013), are:
(1) the record was made at or near the time of the event; (2)
was made by or from information transmitted by a person with
knowledge; (3) was kept in the ordinary course of a regularly
conducted business activity; and (4) that it was a regular
practice of that business to make such a record.
Holt, 155 So. 3d at 503 (quoting Yisrael v. State, 993 So. 2d 952, 956 (Fla.
2008)). “[A] witness’s general testimony that a prior note holder follows a
standard record-keeping practice, without discussing details to show
compliance with section 90.803(6), is not enough to establish a foundation
for the business records exception.” Id. at 505. However, “where the
current note holder ha[s] procedures in place to check the accuracy of the
information it received from the previous note holder,” then “[the]
subsequent note holder can [] provide testimony” to satisfy the business
records exception. Id. at 506.
In Holt, a foreclosing bank sought to admit records of prior servicers
into evidence. Id. at 502. However, the bank’s witness had never worked
for the prior servicers, did not know who had transmitted any of the prior
servicers’ records, and had never seen the prior servicers’ policy manuals.
Id. The only basis of the witness’s knowledge was that the prior servicers
followed “the generally accepted servicing practice.” Id. at 505. This court
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held that the bank did not provide sufficient information to lay the
foundation for the business records exception. Id. at 506. See also
Burdeshaw v. Bank of N.Y. Mellon, 148 So. 3d 819, 826 (Fla. 1st DCA 2014)
(finding the bank failed to satisfy the business records exception where the
testimony that the records were accurate “was merely supposition, based
on her general knowledge of ordinary mortgage industry practices, not any
specific knowledge about” the original lender and subsequent servicers);
Glarum v. LaSalle Bank Nat’l Ass’n, 83 So. 3d 780, 782 (Fla. 4th DCA 2011)
(finding the prior servicer’s records were inadmissible hearsay because the
plaintiff’s only witness “did not know who, how, or when the data entries
were made into [the prior servicer’s] computer system” and he “could not
state if the records were made in the regular course of business”).
In the instant case, Nationstar failed to satisfy the requirements of the
business records exception. Janati, Nationstar’s sole witness, never
worked for Aurora, never visited any Aurora office, and never spoke to any
Aurora employee. She did not have personal knowledge as to how Aurora
processed, compiled, or retained its records, including the breach letter.
Although Janati felt Aurora’s records were accurate because “[t]hey’re a
reputable big company,” she never identified any particular record-keeping
system Aurora used. She also did not testify that Nationstar had any
mechanisms for checking the accuracy of Aurora’s numbers. See Holt,
155 So. 3d at 504-05. Janati’s testimony was therefore “not enough to
establish a foundation for the business records exception.” Id. at 505.
Thus, the trial court erred when it permitted the introduction of the Aurora
records into evidence.
Aurora argues the introduction of Aurora’s payment history was
harmless error because Nationstar’s payment history was admitted
without objection. This argument is meritless.
Paragraph twenty-two of the mortgage required that notice of breach
and opportunity to cure be sent to Ensler as a condition precedent to filing
suit. However, the only indication the notice was actually sent comes from
inadmissible hearsay, i.e., Aurora’s records. Because Nationstar has failed
to present any admissible evidence that the notice was actually sent, we
reverse the final judgment of foreclosure and remand for further
proceedings. See Holt, 155 So. 3d at 506-07.
Reversed and remanded for further proceedings consistent with this
opinion.
STEVENSON and KLINGENSMITH, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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