4D13-2101-Kristy S. Holt v. Calchas, LLC

No. 4D13-2101
[January 28, 2015]
On Motion for Rehearing
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. 08-19406 CA.
Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort
Lauderdale, for appellant.
Pascale Achille and Brian S. Vidas of Panza, Maurer & Maynard, P.A.,
Fort Lauderdale, for appellee.
We grant the Appellant’s motion for rehearing, withdraw our opinion
dated November 5, 2014, and issue the following in its place:
Kristy S. Holt appeals the trial court’s order granting final judgment in
favor of Calchas, LLC (“the bank”). Holt argues that the trial court erred
by: (1) admitting into evidence a copy of the promissory note, mortgage,
and assignment of mortgage; (2) denying her motion to dismiss for the
bank’s failure to prove compliance with paragraph twenty-two of the
mortgage; and (3) admitting into evidence the payment history over her
hearsay objection. We find no merit in the first argument and affirm
without discussion, but agree with the second and third arguments and
reverse and remand with instructions to dismiss the case for failure to
prove a prima facie case at trial.
The Pertinent Trial Proceedings
Wells Fargo Bank, N.A., the original plaintiff, filed a mortgage
foreclosure complaint. Holt filed various amended affirmative defenses,
including the bank’s failure to give the contractually required notice of
default, opportunity to cure, and acceleration of the amount due. During
the litigation, there were two substitutions of party plaintiffs. The first
substituted Consumer Solutions 3, LLC for Wells Fargo, and the second
substituted the bank for Consumer Solutions. Eventually, a trial was
The trial proceeding was unusual. The transcript of the trial for the
record on appeal begins in the middle of the bank’s direct examination of
Holt. Apparently, the trial judge who began the trial recused herself
shortly after the trial began. On the same day, after a recess, a second
judge took over the trial and testimony resumed from where the trial
stopped when the first judge recused herself. Additionally, the attorney
for Holt, who represented her while the first judge was presiding, also left
the trial, and a new attorney began representing her. The transcript for
the portion of the trial conducted by the first judge was not provided on
During the portion of the trial before the second judge, the bank’s asset
manager testified, and the bank sought to enter Holt’s payment history
into evidence under the business records exception to the hearsay rule.
Holt objected to the admission of the payment history and proceeded to
voir dire the asset manager regarding his personal knowledge of the
The asset manager admitted that he worked for the bank, but was
testifying regarding how Consumer Solutions handled the loan before the
bank acquired it. He testified that he never worked for Consumer
Solutions and did not know who transmitted the records he was testifying
about and had never seen Consumer Solution’s policy manual. He further
testified: “And doing -- I believe that they -- the way I’ve done business in
the past I believe they do things correctly.” He testified substantially the
same with regard to his knowledge about how Wells Fargo previously
The bank argues on appeal that the original note and mortgage were admitted
into evidence by stipulation during the first portion of the trial. Because a
transcript of that portion of the trial was not made a part of the appellate record,
and because we reverse on other grounds, we affirm on the issue of improper
admission of a copy of the note and mortgage during the second portion of the
trial without further discussion.
handled the loan and admitted he never worked for Wells Fargo. At the
end of the voir dire, Holt objected to the admissibility of the payment
history on the basis of hearsay.2 Holt’s objection was overruled.
After the bank rested its case, Holt moved to dismiss the action on the
basis that the bank did not provide any evidence that it complied with
paragraph twenty-two of the mortgage. Paragraph twenty-two required
the [l]ender shall give notice to Borrower prior to acceleration
following Borrower’s breach of any covenant or agreement in
this Security Instrument . . . . The notice shall specify: (a) the
default; (b) the action required to cure the default; (c) a date,
not less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that
failure to cure the default on or before the date specified in the
notice may result in acceleration of the sums secured by this
Security Instrument, foreclosure by Judicial proceeding and
sale of the Property.
The bank responded that there were at least two affidavits in the court
file stating that it complied with paragraph twenty-two. However, the
record shows that the affidavits were not admitted as evidence at the time
the bank rested its case-in-chief. Holt objected to the affidavits being
considered, and argued that, even if the trial court took judicial notice of
the court file containing the affidavits stating that paragraph twenty-two
was complied with, the court could not take judicial notice of the fact that
the notice was mailed. The trial court implicitly overruled the objection
and denied the motion to dismiss by granting the judgment. Holt argues
that the trial court judge erred in admitting the payment history over her
objection and in denying her motion to dismiss. We agree.
Legal Analysis
The standard of review for evidentiary rulings is abuse of discretion.
Salazar v. State, 991 So. 2d 364, 373 (Fla. 2008). The standard of review
for denial of a motion for involuntary dismissal at trial is de novo. See
On appeal, Holt also contends the trial court erred in overruling her hearsay
objection to admitting into evidence a copy of the assignment of mortgage. The
record is unclear and it is unknown if the trial court also admitted the mortgage
assignment into evidence based on the business records exception. The mortgage
assignment was nonetheless admissible as a verbal act (discussed below), so we
affirm as to that issue without further discussion.
Sheehan v. Allred, 146 So. 2d 760, 764 (Fla. 1st DCA 1962) (“By whatever
name it is called, [a motion for a directed verdict] is essentially a procedural
device by which an issue made by the pleadings is withdrawn from the
jury’s consideration when the evidence establishes without conflict that
the moving party is entitled to judgment on the issue as a matter of law.”)
(emphasis added); see also Charlotte Asphalt, Inc. v. Cape Cave Corp., 406
So. 2d 1234, 1236 (Fla. 2d DCA 1981) (citing Harnett v. Fowler, 94 So. 2d
724 (Fla. 1957)) (explaining that motions for directed verdict in jury cases
or involuntary dismissal in nonjury cases are governed by the same
Payment History Hearsay Objection
Holt argues that the asset manager was not able to provide the proper
foundation to establish that the payment history was admissible under the
business records exception to the hearsay rule.
Section 90.803(6)(a), Florida Statutes (2013), provides:
(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, or as
shown by a certification or declaration that complies with
paragraph (c) and s. 90.902(11), unless the sources of
information or other circumstances show lack of
§ 90.803(6)(a), Fla. Stat. (2013). The elements to prove that evidence is
admissible under the business records exception 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.
Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).
Holt cites to Glarum v. LaSalle Bank National Ass’n, 83 So. 3d 780 (Fla.
4th DCA 2011), to support her argument that the witness was not able to
lay the proper foundation for the business records exception. In Glarum,
we reversed a trial court’s order granting summary judgment in favor of a
bank where the evidence of the amount of money owed by the borrowers
was deemed inadmissible under the business records exception. Id. at
783. There, the witness who testified regarding the amount owed by the
borrowers stated that he “did not know who, how, or when the data entries
were made into [the previous mortgage holder]’s system. He could not
state if the records were made in the regular course of business.” Id. at
782. Since the witness could not provide the necessary information to lay
the foundation for the business records exception, we determined the
document constituted inadmissible hearsay. Id. at 783.
Subsequently, we distinguished the facts of Glarum in Weisenberg v.
Deutsche Bank National Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012). In
Weisenberg, we held that, “[u]nlike in Glarum, the deposition excerpts
show that [the affiant] knew how the data was produced” and “[h]er
testimony demonstrated that she was familiar with the bank’s recordkeeping system and had knowledge of how the data was uploaded into the
system.” Weisenberg, 89 So. 3d at 1112.
Additionally, the Second District reversed a trial court’s ruling that
evidence was inadmissible under the business records exception in
WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So. 2d
230, 233 (Fla. 2d DCA 2005). There, the Second District held that a
document which contained the amount of money owed on a loan was
admissible under the business records exception even where the testimony
as to the amount owed was based on information from a bank that
previously held the loan. Id. at 232-33. The plaintiff’s witness testified
that it was part of his duties to oversee the collection of the loans that the
bank purchased, and that the initial numbers he used in his calculations
were provided by the previous bank. Id. at 233. However, the witness also
testified “that while he did not know the specific person at [the previous
bank] who would have put information into the [previous bank’s] system,
he knew how the bank loan accounting systems worked and that the
procedures were ‘bank-acceptable accounting systems.’” Id. Additionally,
the witness testified that, although the original numbers WAMCO used for
calculations came from the previous bank, WAMCO had a process “use[d]
to verify the accuracy of the information received in connection with the
loan purchases.” Id. (emphasis added). The witness explained that, when
WAMCO first received a loan, the information goes into its system and
employees go over the files to see if anything “seem[ed] out of line.” Id.
Although the instant case has some similarity to WAMCO in that a
witness associated with a subsequent note holder testified about loan
information kept by a previous note holder and loan data systems, the
difference in WAMCO is that, there, the witness testified that the current
note holder had procedures in place to check the accuracy of the
information that it received from the previous note holder. The witness in
the instant case did not testify that the bank had these types of
mechanisms in place for checking the accuracy of the numbers from Wells
Fargo or Consumer Solutions. With this type of testimony missing, it is
unknown whether the asset manager had personal knowledge as to the
accuracy of the numbers, unlike the testimony in WAMCO.
This case is more similar to the First District’s decision in Hunter v.
Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014). In Hunter,
a note and mortgage was assigned by one bank, as the initial note holder,
to another bank. Id. At trial, a witness who worked for the current note
holder, but who never worked for the initial note holder, attempted to lay
the foundation for the introduction of records pertaining to prior
ownership and transfer of the note and mortgage as business records. Id.
The witness testified that based on his dealings with the original note
holder, the original note holder’s business practice regarding the transfer
of ownership of loans was standard across the mortgage industry. Id. at
572. He could not testify, based on personal knowledge, who generated
the information in the documents or where the person received the
information. Id. He also testified, in a general fashion and without any
specifics, that some of the documents sought to be introduced were
generated by a computer program used across the industry and that a
records custodian for the loan servicer was the person who usually inputs
the information contained in the documents. Id. The trial court admitted
the documents into evidence. Id.
The court in Hunter observed that “[w]hile it is not necessary to call the
individual who prepared the document, the witness through whom a
document is being offered must be able to show each of the requirements
for establishing a proper foundation.” Id. at 573 (quoting Mazine v. M & I
Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011)). The First District held
that the witness’s “testimony failed to establish the necessary foundation
for admitting [the documents]. . . into evidence under the business records
exception.” Id. The First District also held that:
Absent such personal knowledge, [the witness] was unable to
substantiate when the records were made, whether the
information they contain derived from a person with
knowledge, whether [the original note holder] regularly made
such records, or, indeed, whether the records belonged to [the
original note holder] in the first place. [The] testimony about
standard mortgage industry practice only arguably established
that such records are generated and kept in the ordinary course
of mortgage loan servicing.
Id. (emphasis added).
In the instant case, the asset manager testified that he knew about the
record keeping practices of Wells Fargo and Consumer Solutions because
both companies appeared to do things within “the generally accepted
servicing practice,” according to their records. The witness did not identify
any particular record-keeping system used by either Wells Fargo or
Consumer Solutions, and he did not testify he was personally familiar with
any record-keeping system used by either prior note holder. The issue is
whether the knowledge of common standards and practices is enough to
satisfy the requirements to lay the proper foundation for the business
records exception.
As the First District held in Hunter, 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.
When the foundation for the business records exception is sought through
a subsequent note holder for documents containing electronic records of
loan payments made to a prior note holder, the foundation must
demonstrate compliance with section 90.803(6) based on personal
As stated within the statute itself, one way to demonstrate compliance
with section 90.803(6)(a) based on personal knowledge is the use of the
self-authentication rules contained within section 90.902(11), Florida
Statutes (2013), which states:
(11) An original or a duplicate of evidence that would be
admissible under s. 90.803(6), which is maintained in a
foreign country or domestic location and is accompanied by a
certification or declaration from the custodian of the records
or another qualified person certifying or declaring that the
(a) Was made at or near the time of the occurrence of the
matters set forth by, or from information transmitted by, a
person having knowledge of those matters;
(b) Was kept in the course of the regularly conducted
activity; and
(c) Was made as a regular practice in the course of the
regularly conducted activity,
provided that falsely making such a certification or
declaration would subject the maker to criminal penalty under
the laws of the foreign or domestic location in which the
certification or declaration was signed.
§ 90.902(11), Fla. Stat. (2013). When the current note holder produces at
trial a certification in accordance with section 90.902(11) as to the
payment history maintained by each previous note holder, and then
provides a witness to authenticate the records attributable to the current
note holder, the records of payment history should be admissible. Such a
procedure would assure compliance with all of the requirements for
admission of a business record which relies in part on records from a prior
note holder. The procedure would also satisfy the personal knowledge
requirement for records kept by the previous note holder.
A subsequent note holder can also provide testimony consistent with
that which was approved by the Second District in WAMCO, where the
current note holder had procedures in place to check the accuracy of the
information it received from the previous note holder.
We stress, however, that these examples of permissible methods of
satisfying the business records exception are not exhaustive. As long as
the bank can provide sufficient testimony to lay the proper foundation,
payment history documents should be admitted into evidence.
Since the bank in this case did not provide information sufficient to
satisfy the business records exception, the trial court erred by admitting
the payment history into evidence.
Without sufficient evidence to
determine the amount due under the note and mortgage, the trial court
erred in entering a foreclosure judgment in favor of the bank. If this was
the only error, we would reverse and remand for the trial court to take
further evidence, citing Sas v. Fed. Nat’l Mortg. Ass’n, 112 So. 3d 778, 77980 (Fla. 2d DCA 2013) (remanding “for further proceedings to properly
establish the amounts allegedly due and owing” where the Second District
determined that the trial court erred in allowing a witness to testify
regarding the contents of a business record to prove the amount owed over
a hearsay objection). However, due to the error discussed below, we
remand for dismissal; thus, further evidence is not appropriate.
Compliance With A Condition Precedent
Paragraph twenty-two of the mortgage required that notice of default
and opportunity to cure had to be given before the bank was permitted to
accelerate the amount due on the note. The trial court took judicial notice
of an affidavit in the court file as evidence of compliance with paragraph
twenty-two. We agree with Holt’s argument that the evidence was
insufficient to show compliance with paragraph twenty-two. As stated by
our supreme court:
Although a trial court may take judicial notice of court records
. . . it does not follow that this provision permits the wholesale
admission of hearsay statements contained within those court
records. We have never held that such otherwise inadmissible
documents are automatically admissible just because they
were included in a judicially noticed court file. To the
contrary, we find that documents contained in a court file,
even if that entire court file is judicially noticed, are still
subject to the same rules of evidence to which all evidence
must adhere.
Burgess v. State, 831 So. 2d 137, 141 (Fla. 2002) (quoting Stoll v. State,
762 So. 2d 870, 876-77 (Fla. 2000)) (internal quotation marks omitted).
Therefore, although the trial court could take judicial notice of the court
file, the rules of evidence, including hearsay rules, still applied to the
information contained within the court file.
It is true the copy of the notice required by paragraph twenty-two was
admissible, over a hearsay objection, as a verbal act.
A verbal act is an utterance of an operative fact that gives rise
to legal consequences. Verbal acts, also known as statements
of legal consequence, are not hearsay, because the statement
is admitted merely to show that it was actually made, not to
prove the truth of what was asserted in it.
Arguelles v. State, 842 So. 2d 939, 943 (Fla. 4th DCA 2003) (quoting Banks
v. State, 790 So. 2d 1094, 1097-98 (Fla. 2001)). Since the copy of the
notice contained in the court file was not offered to show that the
declarations made in the notice were true, but instead, the contents of the
notice, the copy of the notice constitutes a verbal act.
The affidavits, on the other hand, were offered to prove the truth of the
matter asserted (that the notice was sent). Therefore, Holt’s hearsay
objection to the affidavits should have been sustained. See § 90.801(1)(c),
Fla. Stat. (2013).3
The bank also argued to the trial court that the testimony of Holt proved
that a notice complying with paragraph twenty-two was sent. However,
Holt’s testimony in that regard was as follows:
Q: You recall receiving information that you defaulted on your
note from your lender, correct?
A: No, I don’t recall.
As such, Holt’s testimony was neither evidence that she did receive, nor
did not receive, the notice; her testimony was simply that she did not recall
if she received the notice.
We agree with Holt that insufficient evidence of compliance with
paragraph twenty-two justifies dismissal of the entire case.4 We therefore
reverse and remand instruct the trial court to dismiss the case for failure
to prove a prima facie case at trial.
We do not address whether the affidavits could have been admissible as a
business record, as that issue was not briefed on appeal. We also observe that
there was no evidence laying the foundation for the affidavits as business records.
Although in our previous opinion, which is now withdrawn, we construed
paragraph twenty-two as relating to acceleration remedies and not past due
amounts, upon consideration of Holt’s motion for rehearing, we are satisfied that
failure to prove compliance with paragraph twenty-two at trial requires dismissal
of the case due to the requirements imposed by paragraph twenty of the
mortgage, which provides:
Neither Borrower nor Lender may commence . . . any judicial action
pursuant to this Security Instrument or that alleges that the other
party has breached any provision of, or any duty owed by reason of,
this Security Instrument, until such Borrower or Lender has
notified the other party . . . of such alleged breach and afforded the
other party hereto a reasonable period after the giving of such notice
to take corrective action. . . . . The notice of acceleration and
opportunity to cure given to Borrower pursuant to [paragraph] 22 .
. . shall be deemed to satisfy the notice and opportunity to take
corrective action provisions of this [paragraph] 20.
Reversed and remanded.
STEVENSON and FORST, JJ., concur.
Not final until disposition of timely filed motion for rehearing.