Miller v. Bank of America, N.A.

District Court of Appeal of Florida

Miller v. Bank of America, N.A.

201 So. 3d 1286, 2016 Fla. App. LEXIS 16043

CourtDistrict Court of Appeal of Florida

DecidedOctober 28, 2016

Docket5D15-780

StatusPublished

Cited by3 cases

This text of 201 So. 3d 1286 (Miller v. Bank of America, N.A.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Bank of America, N.A., 201 So. 3d 1286, 2016 Fla. App. LEXIS 16043 (Fla. Ct. App. 2016).

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Opinion

EDWARDS, J.

Rhonda and Edward Miller (“Appellants”) appeal from the final judgment-of foreclosure in favor of Bank of America, N.A. (“Appellee”). The issues in this appeal are familiar in foreclosure cases: whether Appellee had.standing to sue and whether the documents Appellee relied on fit within the business records exception to the hearsay rulé. The lack of documentation here, however, was unusual: Appellee, which was not the original lender, did not offer any assignments, indorsements, or allonges to prove that it had standing to sue. Appellants argue, and.we agree, that the trial court erred in admitting a screen-shot of a document referred to as an “LNTH” into evidence over their hearsay objection, as the foundation for the business records exception was not established. Because the erroneously admitted LNTH document was the only evidence of Appellee’s standing to sue, we reverse.

Originally, Appellants executed a note and mortgage in favor of SunTrust. Ap-pellee alleged in its corhplaint that Sun-Trust assigned the mortgage to Appellee; however, at trial, Appellee did not rely on the assignment or introduce the assignment into evidence. Instead, Appellee relied on the testimony of its sole witness, Ms. Allen, in an effort to establish its standing to foreclose. Ms. Allen testified that SunTrust sold the loan to Appellee and as part of that transaction, SunTrust physically transferred the original promissory note to Appellee. There -was no proof of an indorsement from SunTrust to Ap-pellee, nor proof of an indorsement in blank. SunTrust remained as the mort *1288 gage servicer even after the supposed transfer to Appellee.

When Appellants defaulted on the mortgage, Appellee allegedly returned the original note to SunTrust. Typically, Sun-Trust would have sent the note to trial counsel to commence foreclosure proceedings. However, the note was lost before it reached trial counsel. Ms. Allen testified that the loss of the note occurred in May 2012, but she did not know any specifics of how the note was lost. Appellee’s foreclosure complaint included a count to reestablish the lost note and mortgage.

Ms. Allen’s testimony that Sun-Trust sold Appellants’ loan to Appellee was not based on personal knowledge. Instead, she relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (“LNTH”) that, in pertinent parts, identifies Appellant Rhonda Miller as the borrower and states “05/22/06 SALE TO BANK OF AMERICA.” Ms. Allen testified that she did not know who entered that information or whether it was entirely computer generated. She indicated that she was certain that other documents showed Appellants’ loan was transferred to Appellee, but she did not have such documents with her. Appellant Rhonda Miller testified that neither she nor her husband, Edward Miller, received notification that the loan was sold or transferred to Appel-lee.

Ms. Allen’s affirmative answers to the business record foundation questions do not overcome her demonstrated lack of knowledge about the creation, accuracy, or trustworthiness of the LNTH document. See Yang v. Sebastian Lakes Condo. Ass’n, Inc., 123 So.3d 617, 621 (Fla. 4th DCA 2013) (holding that the witness failed to establish the foundation for the business records exception even though she “employed all of the ‘magic words’ ”). Thus, the trial court erred in admitting the LNTH screenshot into evidence. “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (internal citations omitted). As the trial court noted, Appellee’s proof of standing was thin even with the LNTH document. Excluding the inadmissible LNTH document from consideration, we find Appellee did not establish that it had standing to foreclose. We reverse and remand with directions for the trial court to vacate the final judgment and conduct a new trial.

REVERSED AND REMANDED.

TORPY and EVANDER, JJ., concur.

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EDWARDS, J.

Rhonda and Edward Miller (“Appellants”) appeal from the final judgment-of foreclosure in favor of Bank of America, N.A. (“Appellee”). The issues in this appeal are familiar in foreclosure cases: whether Appellee had.standing to sue and whether the documents Appellee relied on fit within the business records exception to the hearsay rulé. The lack of documentation here, however, was unusual: Appellee, which was not the original lender, did not offer any assignments, indorsements, or allonges to prove that it had standing to sue. Appellants argue, and.we agree, that the trial court erred in admitting a screen-shot of a document referred to as an “LNTH” into evidence over their hearsay objection, as the foundation for the business records exception was not established. Because the erroneously admitted LNTH document was the only evidence of Appellee’s standing to sue, we reverse.

Originally, Appellants executed a note and mortgage in favor of SunTrust. Ap-pellee alleged in its corhplaint that Sun-Trust assigned the mortgage to Appellee; however, at trial, Appellee did not rely on the assignment or introduce the assignment into evidence. Instead, Appellee relied on the testimony of its sole witness, Ms. Allen, in an effort to establish its standing to foreclose. Ms. Allen testified that SunTrust sold the loan to Appellee and as part of that transaction, SunTrust physically transferred the original promissory note to Appellee. There -was no proof of an indorsement from SunTrust to Ap-pellee, nor proof of an indorsement in blank. SunTrust remained as the mort *1288 gage servicer even after the supposed transfer to Appellee.

When Appellants defaulted on the mortgage, Appellee allegedly returned the original note to SunTrust. Typically, Sun-Trust would have sent the note to trial counsel to commence foreclosure proceedings. However, the note was lost before it reached trial counsel. Ms. Allen testified that the loss of the note occurred in May 2012, but she did not know any specifics of how the note was lost. Appellee’s foreclosure complaint included a count to reestablish the lost note and mortgage.

Ms. Allen’s testimony that Sun-Trust sold Appellants’ loan to Appellee was not based on personal knowledge. Instead, she relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (“LNTH”) that, in pertinent parts, identifies Appellant Rhonda Miller as the borrower and states “05/22/06 SALE TO BANK OF AMERICA.” Ms. Allen testified that she did not know who entered that information or whether it was entirely computer generated. She indicated that she was certain that other documents showed Appellants’ loan was transferred to Appellee, but she did not have such documents with her. Appellant Rhonda Miller testified that neither she nor her husband, Edward Miller, received notification that the loan was sold or transferred to Appel-lee.

Ms. Allen’s affirmative answers to the business record foundation questions do not overcome her demonstrated lack of knowledge about the creation, accuracy, or trustworthiness of the LNTH document. See Yang v. Sebastian Lakes Condo. Ass’n, Inc., 123 So.3d 617, 621 (Fla. 4th DCA 2013) (holding that the witness failed to establish the foundation for the business records exception even though she “employed all of the ‘magic words’ ”). Thus, the trial court erred in admitting the LNTH screenshot into evidence. “A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012) (internal citations omitted). As the trial court noted, Appellee’s proof of standing was thin even with the LNTH document. Excluding the inadmissible LNTH document from consideration, we find Appellee did not establish that it had standing to foreclose. We reverse and remand with directions for the trial court to vacate the final judgment and conduct a new trial.

REVERSED AND REMANDED.

TORPY and EVANDER, JJ., concur.

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201 So. 3d 1286, 2016 Fla. App. LEXIS 16043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-bank-of-america-na-fladistctapp-2016.

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