Green Tree Servicing, LLC v. Atchison, Case No. 5D17–226

• Decision Date: 08 December 2017
• Docket Number: Case No. 5D17–226
• Citation: 230 So.3d 635 (Mem)
• Parties: GREEN TREE SERVICING, LLC n/k/a Ditech Financial, LLC, Appellant, v. David G. ATCHISON, Harbour/Ponce Holdings, LLC, Debbie Kay Hudson, Links South at Harbour Village Condominium Association, Inc., et al., Appellees.
• Court: Florida District Court of Appeals

230 So.3d 635 (Mem)

GREEN TREE SERVICING, LLC n/k/a Ditech Financial, LLC, Appellant,

v.David G. ATCHISON, Harbour/Ponce Holdings, LLC, Debbie Kay Hudson, Links South at Harbour Village Condominium Association, Inc., et al., Appellees.

Case No. 5D17–226

District Court of Appeal of Florida, Fifth District.

Opinion filed December 8, 2017

Preston Davis, of Padgett Law Group, Tallahassee, for Appellant.

Daniel J. Webster, of Daniel J. Webster, P.A., Daytona Beach, for Appellees, Harbour/Ponce Holdings, LLC, Palm View of Ponce Inlet, LLC, The Links South at Harbour Village Condominium Association, Inc. and Harbour Village Golf & Yacht Club Community Services Association, Inc. No Appearance for other Appellees.

PER CURIAM.

Appellant challenges the final judgment dismissing its mortgage foreclosure action with prejudice after trial. Appellant argues that two erroneous evidentiary rulings made by the trial court excluding certain evidence at trial requires that we reverse the final judgment and remand for a new trial. Because we conclude that any error committed by the trial court did not constitute harmful error, we affirm.

Appellant did not file the initial mortgage foreclosure complaint. Almost six years after the original complaint was filed, Appellant was granted leave by the trial court to be substituted as the party plaintiff and to file a two-count amended complaint to foreclose on the subject mortgage and to re-establish the lost promissory note. The case proceeded to trial on Appellant's amended complaint. Because Appellees raised a defense of lack of standing, Appellant had the burden at trial to establish that it had standing to foreclose at the time of trial and that the original plaintiff had standing at the time the foreclosure complaint was filed. See Russell v. Aurora Loan Servs., LLC, 163 So.3d 639, 642 (Fla. 2d DCA 2015) (quoting Kiefert v. Nationstar Mortg., LLC, 153 So.3d 351, 352 (Fla. 1st DCA 2014) ).

In an effort to establish the standing of the original plaintiff, Appellant attempted to admit into evidence an assignment of the mortgage from the lender to the initial plaintiff. The trial court excluded this evidence, concluding that it was not trustworthy and was inadmissible under the business records exception to the hearsay rule codified at section 90.803(6), Florida Statutes (2016). In its first argument on appeal, Appellant contends that the trial court erred in ruling that the assignment of mortgage was inadmissible under section 90.803(6) because the mortgage assignment was separately admissible as a verbal act.¹ See Holt v. Calchas, LLC, 155 So.3d 499, 502 n.2 (Fla. 4th DCA 2015) (concluding that an assignment of mortgage is admissible into evidence as a verbal act irrespective of the business record exception to the hearsay rule); Deutsche Bank Nat'l Tr. Co. v. Alaqua Prop., 190 So.3d 662, 665 (Fla. 5th DCA 2016) (holding that a promissory note does not have to qualify as a business record under the business record exception to the hearsay rule and is admissible for its independent legal significance—to establish the existence of the contractual relationship and the rights and...