Duroy Henderson and Marilyn Henderson v. Deutsche Bank National Trust Company, etc., Palm Auto Plaza, Inc., d/b/a Palm Beach Toyota, State of Florida Department of Revenue, Hughes Supply Inc., d/b/a Florida Pipe & Supply Co.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

DUROY HENDERSON and MARILYN HENDERSON,
Appellants,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee under
Pooling and Serving Agreement dated as of May 1, 2007 Securitized Asset
Back Receivables LLC Trust 2007-BR4 Mortgage Pass-Through
Certificates, Series 2007-BR4, PALM AUTO PLAZA, INC. d/b/a PALM
BEACH TOYOTA, STATE OF FLORIDA DEPARTMENT OF REVENUE,
HUGHES SUPPLY, INC. d/b/a FLORIDA PIPE & SUPPLY CO.,
Unknown Parties in Possession #1, Unknown Parties in Possession #2; If
living, and all Unknown Parties claiming by, through, under and against
the above named Defendant(s) who are not known to be dead or alive,
whether said Unknown Parties may claim an interest as Spouse, Heirs,
Devisees, Grantees, or Other Claimants,
Appellees.

No. 4D13-1780

[ February 11, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard Harrison, Judge; L.T. Case No. 502007CA020031.

James A. Bonfiglio, Boynton Beach, for appellants.

Eve Cann of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.,
Fort Lauderdale, for Appellee-Deutsche Bank.

PER CURIAM.

The borrowers, Duroy and Marilyn Henderson, appeal a final judgment
of foreclosure entered after a bench trial. Because Deutsche Bank failed
to prove its entitlement to foreclose, we reverse the final judgment.
Without further comment, however, we find that the trial court did not err
in denying relief on the borrowers’ counterclaim under the Truth in
Lending Act.

As a preliminary matter, the record reflects—and Deutsche Bank
concedes—that Deutsche Bank’s witness’s testimony regarding the loan
payment history did not satisfy the business records exception to the
hearsay rule. Therefore, the trial court erred in admitting the evidence
regarding the loan payment history. See, e.g., Glarum v. LaSalle Bank Nat’l
Ass’n, 83 So. 3d 780, 781-83 (Fla. 4th DCA 2011).

Furthermore, the evidence at trial was insufficient to prove that
Deutsche Bank had standing to enforce the promissory note at the time
the complaint was filed. Deutsche Bank seems to concede this point,
acknowledging in its answer brief that “[t]he witness also appeared unable
to confirm that [Deutsche Bank] had the right to enforce the note and
mortgage prior to the filing of the subject foreclosure action.” Because
Deutsche Bank failed to prove it had standing to foreclose at the inception
of the case, we reverse the final judgment of foreclosure and remand for
the trial court to enter an involuntary dismissal of the complaint. See,
e.g., Klemencic v. U.S. Bank Nat’l Ass’n, 142 So. 3d 983, 984 (Fla. 4th DCA
2014).

Reversed and Remanded as to foreclosure judgment; Affirmed as to
denial of relief on counterclaim.

DAMOORGIAN, C.J., TAYLOR and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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