Tramontana v. Bank of N.Y. Mellon, Case No. 2D16–2990

• Decision Date: 15 November 2017
• Docket Number: Case No. 2D16–2990
• Citation: 230 So.3d 601
• Parties: Carlos TRAMONTANA, individually and as trustee under a trust agreement, and known as Trust No. 440, dated August 31, 2012, Appellant, v. BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005–51, Mortgage Pass–Through Certificates Series 2005–51; and 440 West, Inc., Appellees.
• Court: Florida District Court of Appeals

230 So.3d 601

Carlos TRAMONTANA, individually and as trustee under a trust agreement, and known as Trust No. 440, dated August 31, 2012, Appellant,

v.BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee, on behalf of the holders of the Alternative Loan Trust 2005–51, Mortgage Pass–Through Certificates Series 2005–51; and 440 West, Inc., Appellees.

Case No. 2D16–2990

District Court of Appeal of Florida, Second District.

Opinion filed November 15, 2017

Ian P. Hudson of The Law Office of Francis M. King, St. Petersburg, for Appellant.

Sarah T. Weitz of Weitz & Schwartz, P.A., Fort Lauderdale, for Appellee Bank of New York Mellon.

LaROSE, Chief Judge.

Carlos Tramontana appeals the final judgment of foreclosure entered in favor of Bank of New York Mellon (BNYM). He maintains that BNYM failed to establish the amounts due and owing. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm the judgment.

Mr. Tramontana argues that the trial court erred in admitting BNYM's loan payment history, which included records from prior loan servicers. He contends that BNYM failed to prove that the records qualified as business records under the evidence code. See § 90.803(6), Fla. Stat. (2014). BNYM could have established these documents as business records either by "providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy" or "establish[ing] trustworthiness by independently confirming the accuracy of the third-party's business records upon receipt." Bank of New York v. Calloway, 157 So.3d 1064, 1072 (Fla. 4th DCA 2015). Mr. Tramontana argues that the record fails to show that BNYM verified the prior servicers' records or offered any witness testimony to establish such verification.

Fatally, there is no trial transcript. Without a transcript, and in the absence of fundamental error on its face, an appellate court will affirm a trial court's decision. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not [sic] properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory."); see also 1321 Whitfield, LLC v. Silverman, 67 So.3d 435, 437 (Fla. 2d DCA 2011) (affirming final judgment of foreclosure where, due to absence of hearing transcript, this court was unable to meaningfully review...