Wells Fargo Bank, N.A. v. Toni Balkissoon, Devi Balkissoon, Toni R. Balkisson, Jr. , 2016 Fla. App. LEXIS 1447 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF OF THE
HOLDERS OF THE HARBORVIEW MORTGAGE LOAN TRUST
MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2007-1,
Appellant,
v.
TONI BALKISSOON, DEVI BALKISSOON, TONI R. BALKISSOON, JR.,
ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH,
UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL
DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE,
WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS
SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS,
CITIBANK, N.A., AS SUCCESSOR BY MERGER TO CITIBANK (SOUTH
DAKOTA, N.A.), and TENANT,
Appellees.
No. 4D14-669
[ February 3, 2016 ]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Judge; L.T. Case No. CACE12017999
(11).
G. Bart Billbrough and Caroline Milewski of Billbrough & Marks, P.A.,
Coral Gables, for appellant.
Peter Ticktin, Kendrick Almaguer and Juliane A. Murphy of The Ticktin
Law Group, P.A., Deerfield Beach, for appellees.
TAYLOR, J.
Wells Fargo Bank, N.A. (“Wells Fargo”) appeals the final judgment
entered in favor of appellees Toni and Devi Balkissoon after its mortgage
foreclosure case was involuntary dismissed at trial. Wells Fargo argues
that the trial court erred in excluding evidence of the Balkissoons’ loan
payment history and the notice of default and acceleration. Because Wells
Fargo laid the necessary foundation for admission of this evidence, we
reverse and remand for further proceedings.
At trial, appellant presented the testimony of Luis Reyes, an assistant
vice-president with Bank of America. Reyes testified that Bank of America
was the servicer on the loan at the time of default. He testified that he was
trained and familiar with the business practices of Bank of America
regarding the receipt and posting of payments on loans and the payment
histories generated. He described how, when Bank of America receives
payments on the loans, the payments are posted on a servicing system
called AS400. The AS400 system contains basic loan information,
including the payment history, escrow information, and property address.
After receiving a payment, Bank of America makes disbursements for
property taxes and insurance. Those disbursements are documented on
the AS400 system and reflected in the payment history.
Reyes identified the Bank of America payment history for the subject
loan and testified that it reflected the payments received from the
borrowers, as well as expenditures made by Bank of America on their
behalf. He testified that the payment history record was made at or near
the time of the events reflected and by or from information transmitted by
persons with knowledge, that it was a record kept in the course of regularly
conducted business activity, and that it was the regular practice of Bank
of America to make a record of that activity.
When defense counsel objected to admission of the payment history on
grounds of lack of foundation, the court allowed him to conduct a voir dire
examination. On voir dire, defense counsel elicited testimony that Reyes
had never actually worked in the payment posting department and was
unable to describe the specific manual act of posting the payment in the
computer system because it was not part of his job duties. Defense
counsel renewed his objection to admission of the payment history on the
ground that Reyes was not familiar with how the payments are posted to
the AS400 system. The trial court sustained the objection and excluded
the payment history record, based on Yang v. Sebastian Lakes
Condominium Ass’n, 123 So. 3d 617 (Fla. 4th DCA 2013), and Glarum v.
LaSalle Bank National Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011). Wells
Fargo’s counsel advised that he would not be able to prove default without
the payment history and thus proffered the remainder of his evidence for
appellate purposes.
Reyes identified the notice of default and acceleration. He explained
that every night the AS400 system scans every loan for default. If a loan
is in default, then the loan information is transmitted to a vendor over a
secure connection. The vendor, Waltz, creates a notice letter, using the
transmitted information and a Bank of America template. Waltz sends the
notice to the borrower and a copy to Bank of America. This process takes
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one to two days.
On cross-examination, Reyes admitted that he was not familiar with
Waltz’s corporate structure and did not know which department created
the notice. Defense counsel objected to the notice of default and
acceleration, arguing that Reyes was not sufficiently familiar with Waltz’s
practices and procedures. After the trial court sustained the objection,
defense counsel moved for an involuntary dismissal because Wells Fargo
failed to establish default damages or to prove that it fulfilled the
conditions precedent to filing suit. The trial court granted the motion,
prompting this appeal.
The standard of review for a motion for involuntary dismissal is de novo.
Brundage v. Bank of Am., 996 So. 2d 877, 881 (Fla. 4th DCA 2008). An
involuntary dismissal is proper “only when the evidence considered in the
light most favorable to the non-moving party fails to establish a prima facie
case on the non-moving party’s claim.” McCabe v. Hanley, 886 So. 2d
1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Helling, 811 So.
2d 822, 825 (Fla. 5th DCA 2002)).
In this case, the involuntary dismissal resulted from two evidentiary
rulings regarding business records. A trial court’s ruling on the
admissibility of evidence is reviewed for abuse of discretion. Yang, 123 So.
3d at 620. That discretion is limited by the rules of evidence. Id.Pursuant to section 90.803(6)(a), Florida Statutes (2013), for business
records to be admitted into evidence “the proponent must show that (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.” Yisrael
v. State, 993 So. 2d 952, 956 (Fla. 2008).
The foundation necessary for admission of a business record may be
established by a records custodian or other qualified witness. §
90.803(6)(a), Fla. Stat. The witness authenticating the records “need not
be the person who actually prepared the business records.” Cayea v.
CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014) (citation and
internal quotation marks omitted). Instead, “the witness just need be well
enough acquainted with the activity to provide testimony.” Id.Exclusion of the Payment History
Relying on Glarum and Yang, the trial court found that Wells Fargo did
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not lay the requisite foundation for admission of the payment history
because Reyes could not explain the mechanics of the posting process.
Glarum and Yang can be distinguished from this case, however, because
the witnesses in those cases had little or no knowledge of the practices
and procedures of the prior servicer or accountant who produced the
records. In Glarum, we held that a loan servicer’s affidavit was insufficient
to prove the amount of indebtedness, because the affiant had no
knowledge of how his own company’s payment history data was produced.
83 So. 3d at 782. He also admitted that he relied partly on data retrieved
from a prior servicer of the loan, with whose procedures he was even less
familiar. Id. at 783. Because the specialist could not authenticate the
data, we held that the affidavit of indebtedness constituted inadmissible
hearsay. Id.
In Yang, we held that the condominium association failed to lay the
proper foundation for admission of payment ledgers under the business
records exception, because the association’s witness could not attest to
the accuracy of the starting balances in the records and she was
unfamiliar with the practices and procedures of the previous management
company’s accountant. 123 So. 3d at 621. In contrast, the testimony in
this case was being offered by a Bank of America witness about Bank of
America’s records. No prior entity issue was involved. Reyes worked for
Bank of America and testified in detail about Bank of America’s practices
and procedures for creating the payment history.
Our decision in Weisenberg v. Deutsche Bank National Trust Co., 89 So.
3d 1111, 1112 (Fla. 4th DCA 2012), is more on point. There, in an appeal
of a summary final judgment against a borrower in a mortgage foreclosure
action, we considered the borrower’s argument that there was an
insufficient foundation for admission of an affidavit of amounts due and
owing. We concluded that the record contained a sufficient foundation for
admission of the affidavit because the witness “knew how the data was
produced.” We explained:
[The witness] testified that the cashiering department was
responsible for collecting and applying payments.
Information relating to the servicing of the loans was kept in
a program known as the mortgage servicing platform, which
she relied on to verify the specific figures in her affidavit. Her
testimony demonstrated that she was familiar with the bank’s
record-keeping system and had knowledge of how the data
was uploaded into the system.
Id.4
Similarly in Cayea, we held that the bank’s witness, who worked in the
default research and litigation department, laid the foundation for
admission of the defendants’ payment history by testifying that:
[I]t was the regular business practice of Citi to input payments
into its system upon receipt and payments were entered into
Citi’s system, “Citilink,” by employees of its payment
processing department. He further testified that the payment
processing department had two groups—one which monitored
electronic payments and one which monitored payments by
mail—each of which were responsible for posting their
respective payments into the proper account in Citilink.
Lastly, the witness testified that such entries were kept in the
ordinary course of business activity at Citi and it was the
ordinary business practice of Citi to keep individual records
for each loan.
138 So. 3d at 1216 (emphasis removed).
In Peuguero v. Bank of America, N.A., 169 So. 3d 1198, 1201 (Fla. 4th
DCA 2015), we held that the bank’s witness laid the necessary foundation
under the business records exception when she testified about the bank’s
procedure for inputting payment information into the proper computer
systems. We stated:
Although [the witness] was unable to give the precise name for
each group in the Bank’s structural hierarchy that was
responsible for entering various events into the computerized
records, she knew that the events/transactions were
processed at the time of their occurrence and placed into the
Bank’s systems, as per standard business practice for the
Bank.
Id.Reyes’s testimony was similar to that of the witnesses in Weisenberg,
Cayea, and Peuguero. He described in detail how payments are received
and processed by the payment center through use of the AS400 system.
The AS400 system contains basic loan information, including the payment
history, escrow information, and property address. Bank of America
applies payments it receives to the interest and principal on the loan and
then to tax and insurance. The payment center records the allocation of
funds in the AS400 system.
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Reyes also identified the Balkissoons’ payment history. He testified
that the payment records were made at or near the time the events
occurred. The record was made by or from information transmitted by
persons with knowledge and kept in the ordinary course of regularly
conducted business activity. He also testified that it was the regular
practice of the company to make these payment records. Reyes’s
explanation about how the payment was allocated and recorded on the
system was sufficient testimony about how the data was “uploaded” to the
system. Although Reyes was not familiar with the mechanics of actually
typing the data into the system, there is no requirement that the witness
have such knowledge. See Cayea, 138 So. 3d at 1217 (explaining that the
witness authenticating the records need not be “the person who actually
prepared the business records”).
Mr. Reyes also demonstrated he had personal knowledge concerning
the accuracy of Bank of America’s records. He testified about his personal
familiarity with the posting of payments and personal knowledge that the
employees in the payment center accurately update the payment histories.
He testified that he had personally received payments from borrowers, sent
them to the payment processing department, and was able to later verify
that the payments were properly credited to the proper loan accounts.
Exclusion of the Default/Acceleration Letter
Similarly, Reyes demonstrated that he was sufficiently familiar with
Bank of America’s practice and procedure for generating and sending the
default notice to meet the business records exception. He testified that
the notice was made at or near the time of the events reflected therein and
made by or from information transmitted by people with knowledge. Each
night, Bank of America transmitted the information for loans in default to
Waltz over a secure connection. Waltz used a Bank of America template
to create the notice within two days of receiving the loan information.
Waltz did not generate any of the information in the notice. Mr. Reyes
testified that the copy of the notice was kept in the ordinary course of Bank
of America’s regularly conducted business activity and it was the regular
practice of Bank of America to make this record. Once Waltz generated
the notice and mailed it, Bank of America kept a copy of the notice in its
records and made a note of the mailing date.
In sum, Reyes was sufficiently familiar with Bank of America’s practices
and procedures in creating the payment history and the notice of default
and acceleration to lay the necessary foundation for the admission of those
documents. Because the trial court erred in excluding these documents
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from evidence, we reverse the final order of dismissal and remand for
further proceedings.
Reversed and remanded for further proceedings.
CIKLIN, C.J., and LEVINE, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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