Ensler v. Aurora Loan Servs., LLC

• Decision Date: 28 October 2015
• Docket Number: No. 4D14–351.,4D14–351.
• Citation: 178 So.3d 95
• Parties: Kimberly A. ENSLER, Appellant, v. AURORA LOAN SERVICES, LLC, Appellee.
• Court: Florida District Court of Appeals

178 So.3d 95

Kimberly A. ENSLER, Appellant,

v.AURORA LOAN SERVICES, LLC, Appellee.

No. 4D14–351.

District Court of Appeal of Florida, Fourth District.

Oct. 28, 2015.

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 partyplaintiff 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 DCA2015)(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(quotingYisrael 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 held that the bank did not provide sufficient information to lay the foundation for the business records exception.Id. at 506.See alsoBurdeshaw v. Bank of N.Y. Mellon,148 So.3d 819, 826(Fla. 1st DCA2014)(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...