Kelsey v. Suntrust Mortg., Inc.
| Decision Date | 12 February 2014 |
| Docket Number | No. 3D12–2994.,3D12–2994. |
| Citation | 131 So.3d 825 |
| Parties | Terrence and Tiwanna KELSEY, Appellants, v. SUNTRUST MORTGAGE, INC., Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Ice Appellate, and Thomas Erskine Ice and Amanda L. Lundergan, Royal Palm Beach, for appellants.
Broad and Cassel, and Steven Ellison and Tara S. Pellegrino, West Palm Beach, for appellee.
Before ROTHENBERG, LAGOA, and EMAS, JJ.
ON MOTION FOR REHEARING & PARTIAL CONCESSION OF ERROR
We grant the appellee's motion for rehearing, withdraw our former opinion dated December 4, 2013, and substitute the following opinion in its stead.
This appeal comes to us from a final default judgment ordering the foreclosure of the Kelseys' home in favor of SunTrust Mortgage, Inc. (“SunTrust”). Although the Kelseys have raised several points of error on appeal, we address only one, and based on SunTrust's proper concession of error, we reverse and remand for further proceedings.
At trial, SunTrust's only testifying witness was Lauren Gergeceff (“Gergeceff”), a mediation litigation specialist employed by Nationstar Mortgage, LLC (“Nationstar”).1 Gergeceff testified that she had no independent knowledge of the loan, she had only seen the subject note for the first time the day of trial, and she had only become familiar with the mortgage file when she learned the case was being tried. Gergeceff also relied on a proposed final order that had been prepared by a third party to testify regarding the amount owing on the note at the time of foreclosure. The Kelseys objected to Gergeceff's authentication of the note, mortgage, and other documents because she lacked the requisite foundation and she was incompetent to testify because her purported knowledge was based entirely on out-of-court documents that had not been made available for inspection, and which were hearsay. The trial court overruled the objections, allowed Gergeceff to testify, and admitted the note and mortgage into evidence.
To establish its entitlement to foreclosure, SunTrust needed to introduce the subject note and mortgage, an acceleration letter, and some evidence regarding the Kelseys' outstanding debt on the note. See Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979) (). Without the proper foundation, the documents Gergeceff relied upon to establish the amount...
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...note and mortgage, an acceleration letter, and some evidence regarding the ... outstanding debt on the note." Kelsey v. SunTrust Mortg., Inc., 131 So.3d 825, 826 (Fla. 3d DCA 2014) (citing Ernest v. Carter, 368 So.2d 428, 429 (Fla. 2d DCA 1979) ). Denson's discussion of these documents with......
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Chapter 12-1 Introduction
...(Fla. 2d DCA 2017) (Sleet, J. concurring); Ernest v. Carter, 368 So. 2d 428, 429 (Fla. 2d DCA 1979); Kelsey v. SunTrust Mortg., Inc., 131 So. 3d 825, 826 (Fla. 3d DCA 2014); Bank of Am., N.A. v. Delgado, 166 So. 3d 857, 859 (Fla. 3d DCA 2015). Although none of these cases mention standing a......
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Chapter 13-4 Proof of Elements at Trial
...affirmative defense and the burden of proving its existence is on the defendant.82--------Notes:[41] Kelsey v. SunTrust Mortgage, Inc., 131 So. 3d 825,826 (Fla. 3d DCA 2014). Black Point Assets, Inc. v. Federal National Mortgage Association, 220 So. 3d 566 (Fla. 5thDCA 2017).[42] Thigpen v.......
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Chapter 13-4 Proof of Elements at Trial
...affirmative defense and the burden of proving its existence is on the defendant.80--------Notes:[39] Kelsey v. SunTrust Mortgage, Inc., 131 So.3d 825,826 (Fla. 3d DCA 2014). Black Point Assets, Inc. v. Federal National Mortgage Association, 220 So. 3d 566 (Fla. 5thDCA 2017).[40] Thigpen v. ......