Bank of N.Y. Mellon v. Johnson
| Decision Date | 29 January 2016 |
| Docket Number | No. 5D14–3626.,5D14–3626. |
| Citation | 185 So.3d 594 |
| Parties | The BANK OF NEW YORK MELLON f/k/a The Bank of New York As Trustee for the Certificate Holders Cwalt, Inc. Alternative Loan Trust 2006–OA17, Mortgage Pass–Through Certificates, Series 2006–OA17, Appellant, v. Donna D. JOHNSON, Appellee. |
| Court | Florida District Court of Appeals |
185 So.3d 594
The BANK OF NEW YORK MELLON f/k/a The Bank of New York As Trustee for the Certificate Holders Cwalt, Inc. Alternative Loan Trust 2006–OA17, Mortgage Pass–Through Certificates, Series 2006–OA17, Appellant,
v.
Donna D. JOHNSON, Appellee.
No. 5D14–3626.
District Court of Appeal of Florida, Fifth District.
Jan. 29, 2016.
Allison Morat and Ronnie J. Bitman, of Pearson Bitman LLP, Maitland, for Appellant.
Beau Bowin, of Bowin Law Group, West Melbourne, for Appellee.
WALLIS, J.
Appellant, the Bank of New York Mellon F/K/A the Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006–OA17, Mortgage Pass–Through Certificates, Series 2006–OA17 (the "Trust") appeals the trial court's entry of involuntary dismissal in a foreclosure action brought against Donna D. Johnson ("Appellee"). Finding that the trial court erred by determining the Trust failed to comply with the mortgage's pre-foreclosure notice requirements and by excluding various documents obtained from the prior loan servicer, we reverse the entry of involuntary dismissal and remand for a new trial.
On July 24, 2006, Appellee executed a promissory note and accompanying mortgage for $187,000. Appellee defaulted on the mortgage by failing to make payment due August 1, 2009, and all subsequent payments. On May 24, 2010, the Trust filed a complaint to foreclose, and the case proceeded to a non-jury trial on September 12, 2014.
At trial, Christine Coffron, an employee of Select Portfolio Servicing ("SPS"), the loan servicer, testified for the Trust. Coffron explained that SPS does not actually originate any loans, "so every loan it services is brought on through the acquisition process. There's the Loan Acquisition Department and the Onboarding Department that both work together when we service a loan." Regarding the process used to verify the accuracy of the loans obtained from prior servicers, Coffron stated:
[W]hen information is transferred over from the prior servicer as a data file, that data file goes through an algorithm to determine the amounts due in owing from origination to the actual date of transfer to verify information as complete and accurate. If there's something missing, there is that period of time which a prior servicer and the new servicer can work out discrepancies.
It's also during that time that the actual hardcopy documents are transferred
which are reviewed by an actual individual within the Onboarding Department. Any information that is not verified through our quality control check system ... [is] not boarded into the SPS system.
....
It basically goes through their quality control check system, and that consists of about a 650 point check system that each loan clears. If there is any discrepancy, it is noted within the system. If the discrepancy can't be cleared, it won't be boarded. That's generally how it works.
SPS then offered into evidence various records that it obtained from the prior servicer, Bank of America ("BOA"), including a foreclosure referral document and the loan payment history. Despite Coffron's testimony, the trial court sustained Appellee's hearsay objections, finding that Coffron failed to establish a proper foundation for the records' admissibility under the business records exception to the hearsay rule. See § 90.803(6), Fla. Stat. (2014). The trial court explained that the business records exception "was based upon a party's own records, not someone else's records." Moreover, the trial court determined that, because Coffron did not work in the boarding department, she lacked the requisite knowledge concerning the boarding process.
Although the trial court excluded the aforementioned records, it admitted a notice of intent to accelerate ("default letter") sent by BOA on November 9, 2009. The default letter provides, in relevant part:
You may, if required by law or your loan documents, have the right to cure the default after the acceleration of the mortgage payments and prior to the foreclosure sale of your property if all amounts past due are paid within the time permitted by law. However, BAC Home Loans Servicing, LP and the Noteholder shall be entitled to collect all fees and costs incurred by BAC Home Loans Servicing, LP and the Noteholder in pursuing any of their remedies, including but not limited to reasonable attorney's fees, to full extent permitted by law. Further, you may have the right to bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure.
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