Le v. U.S. Bank, 5D14–578.
| Decision Date | 22 May 2015 |
| Docket Number | No. 5D14–578.,5D14–578. |
| Citation | 165 So.3d 776 |
| Parties | Kimberly LE, Appellant, v. U.S. BANK, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Tanner Andrews, Tanner Andrews, P.A., Deland, for Appellant.
Nancy M. Wallace and Kristen M. Fiore, Akerman LLP, Tallahassee, and William P. Heller, Akerman LLP, Fort Lauderdale, for Appellee.
Kimberly Le appeals from a foreclosure judgment in favor of U.S. Bank, N.A., as Successor Trustee to Wachovia Bank, N.A., as Trustee for the Certificate Holders of Banc of America Funding Corporation, Mortgage Pass–Through Certificates, Series 2005–H. Ms. Le argues that the trial court erred in entering the foreclosure judgment because U.S. Bank relied on records from a prior loan servicer to establish its case. We affirm, but strike the award of certain fees and costs.
Ms. Le and her husband, Hung K. Nguyen,1 executed a mortgage and variable rate note for $236,000 in favor of Bank of America in July 2005. The note went into default in September 2008. Bank of America endorsed the note to Wachovia Bank, National Association, as trustee for the holders of Banc of America Funding Corporation Mortgage Pass–Through Certificates, Series 2005–H. Wachovia, thereafter, filed the instant foreclosure action in April 2009. Based on a name and trustee change, U.S. Bank was later substituted as the party plaintiff.
The case proceeded to trial, where the original mortgage, the original note with an endorsement to Wachovia, and a default letter sent to Ms. Le in October 2008 by Bank of America were admitted into evidence. At trial, U.S. Bank chiefly relied on testimony from Felicia Febbler, who testified that she was employed by the current loan servicer, Specialized Loan Servicing (“SLS”), and that SLS had taken over servicing the loan from the original servicer, Bank of America.
Ms. Febbler testified concerning the payment history based on the business records of Bank of America and SLS, explaining that the standard in loan servicing is that “the payments are posted by a person of knowledge at or near the time the event actually occurred.” She testified that she was familiar with the policies used to maintain documents such as these and that the information was contained in records kept in the normal course of business.
Importantly, Ms. Febbler testified that before information from a former servicer is boarded to SLS's system, the information is checked for accuracy and to confirm that the prior servicer's entries, including loan payment histories, conform to industry standards. SLS also verifies the status of the loan. She explained that among other things, SLS verifies the correctness of the records, making sure the original balance is correct and then confirms the payments were properly applied based on amortization schedules that are standard in the industry. With regard to Ms. Le's loan, Ms. Febbler testified from her review of the records of both SLS and Bank of America, that there was no indication of any inaccuracies in the records. The court admitted the payment history into...
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