Ocwen Loan Servicing, LLC v. Gundersen

204 So. 3d 530, 2016 Fla. App. LEXIS 14533
CourtDistrict Court of Appeal of Florida
DecidedSeptember 28, 2016
DocketNo. 4D15-2809
StatusPublished
Cited by8 cases

This text of 204 So. 3d 530 (Ocwen Loan Servicing, LLC v. Gundersen) 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
Ocwen Loan Servicing, LLC v. Gundersen, 204 So. 3d 530, 2016 Fla. App. LEXIS 14533 (Fla. Ct. App. 2016).

Opinion

LEVINE, J.

The issue presented for our consideration in this appeal of the dismissal of a complaint for mortgage foreclosure is whether the trial court abused its discretion in granting an involuntary dismissal after excluding the bank’s business records, which included records from the pri- or servicer. We find the trial court abused its discretion in excluding the records because the bank’s witness demonstrated sufficient familiarity with the boarding process, and his testimony established the trustworthiness of the prior servicer’s records. As such, we reverse the involuntary dismissal and remand for further proceedings.

Ocwen filed an amended complaint for mortgage, foreclosure against appellees. During trial, Harrison Whittaker, an employee of Ocwen, testified that he was familiar-with Ocwen’s recordkeeping system and how the loan data was maintained. Whittaker testified that the records of the prior servicer, GMAG, went through Ocwen’s boarding process after Ocwen purchased ■ GMAC’s assets. According to Whittaker, the records went “through a strict verification process” to ensure the accuracy of the records. The boarding process included “checks and balances” and quality control procedures to ensure the information had been backed up and verified. If Ocwen could not verify any information, it would not be entered into the system. After the verification process was completed, GMAC’s records became a part of Ocwen’s business records. Ocwen continued to use GMAC’s servicing platform.

During Whittaker’s testimony, Ocwen introduced the original note and mortgage into evidence. The note contained an endorsement in blank by the original lender. Ocwen also sought to introduce a “looking-glass screenshot” to show that the original note was copied and entered into GMAC’s system before the filing of the complaint. Appellees objected based on a lack of foundation because Whittaker did not have any personal knowledge that the information entered by GMAC was correct.

During voir dire by appellees, Whittaker admitted that he did not know who verified the information or who entered the information into the system. Whittaker also did not know who boarded the records. The court then questioned Whittaker whether he was personally familiar with GMAC’s recordkeeping system, or whether he was relying' on what other people told him. The court also inquired whether he had personal knowledge of how the prior information was prepared and who prepared it. Whittaker responded that he had not worked for GMAC. The court sustained the objection and excluded the screenshot unless Ocwen could establish a further predicate.

Whittaker then testified that' Ocwen’s boarding process team ensured GMAC’s recordkeeping system was up to date and acceptable. Ocwen used similar record-[533]*533keeping and computer systems as GMAC. Whittaker worked for multiple departments in Ocwen and observed data entry and verification of documents firsthand.

After this testimony, Ocwen again attempted to introduce the screenshot into evidence, and appellees again objected due to lack of foundation and personal knowledge. The court sustained the objection after commenting that Whittaker was not involved in the boarding process and did not have any knowledge as to the prior servicing system. For the same reasons, the court also excluded the loan payment history printout, the default letter, a screen printout of the Fiserv computer system that showed the dates when the default letter was sent, and a printout of the MERS milestone sheet showing transfer of the servicing rights from GMAC.

At the close of Ocwen’s case, the trial court entered an involuntary dismissal. Ocwen moved for rehearing, asserting that the trial court erred in excluding business records based on information Ocwen, acquired from the prior loan servicer. The trial court denied the motion. In its written order, the trial court found, in pertinent part: “Plaintiffs witness was unfamiliar with the verification procedures and the loan boarding process. Plaintiffs witness also failed to verify with sufficient detail that Plaintiff independently verified the accuracy of the payment history and loan information from the prior servicer or to detail the, procedures used for such verification.” '

■ “The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence.” Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009). “[T]he question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State, 922 So.2d 1033, 1036. (Fla. 4th DCA 2006). The business records exception to the hearsay rule allows the admission of

[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, • made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness
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§ 90.803(6)(a), Fla. Stat.

In order for a document to be admissible under this exception, the proponent must show:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.

Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

. “Where a business takes custody of another business’s records and integrates them within its own recórds, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’” Bank of N.Y. v. Calloway, 157 So.3d 1064, 1071 (Fla. 4th DCA 2015). “[T]he authenticating witness need not be ‘the person who actually prepared the business records.’” Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014) (quoting Cooper v. State, 45 So.3d 490, 492 (Fla. 4th DCA 2010)). As such, it is not necessary to present a wit[534]*534ness who was employed by the prior servi-cer or who participated in the boarding process. See Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 213-14 (Fla. 6th DCA 2016); Le v. U.S. Bank, 165 So.3d 776, 778 (Fla. 5th DCA 2015). Rather, the records of a prior servicer are admissible where the current note holder presents testimony that it “had procedures in place to check the accuracy of the information it received from the previous note holder.” Holt v. Calchas, LLC, 155 So.3d 499, 506 (Fla. 4th DCA 2015). The testifying witness “just need[s][to] be well enough acquainted with the activity to provide testimony.” Cayea, 138 So.3d at 1217. “Once this predicate is laid, the burden is on the party opposing the introduction to prove the untrustworthiness of the records,” Love v. Garcia, 634 So.2d 158, 160 (Fla.1994).

In Calloway, the bank sought to introduce the payment history and transaction dates from the computer system of the current servicer, Resurgent. The payment history was derived from documents transferred to Resurgent from the prior servicer.

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Bluebook (online)
204 So. 3d 530, 2016 Fla. App. LEXIS 14533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ocwen-loan-servicing-llc-v-gundersen-fladistctapp-2016.