DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
IAIN and NATASHA McMILLAN,
Appellants,
v.
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK,
as Trustee for the Certificate Holders of CWALT, INC., Alternative Loan
Trust 2006-J8, Mortgage Pass-Through Certificates, Series 2006-J8,
Appellee.
No. 4D14-514
[December 2, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Judge; L.T. Case No. 2008CA038436.
Brian Korte of Korte and Wortman, P.A., West Palm Beach, for
appellants.
Alan M. Pierce, J. Randolph Liebler and Tricia J. Duthiers of Liebler
Gonzalez & Portuondo, Miami, for appellee.
KLINGENSMITH, J.
Iain and Natasha McMillan (“appellants”) appeal the trial court’s final
judgment of foreclosure in favor of The Bank of New York Mellon, f/k/a
The Bank of New York, as Trustee for the Certificate Holders of CWALT,
Inc., Alternative Loan Trust 2006-J8, Mortgage Pass-Through
Certificates, Series 2006-J8 (the “bank”). We affirm on all issues save
one; namely, whether testimony from the bank’s witness regarding
certain amounts due and owing were proved by competent, substantial
evidence. On that issue, we agree with appellants and remand.
During the trial, the bank called a witness employed by the company
servicing appellants’ loan. That witness was given a copy of a proposed
final judgment to assist in providing her testimony regarding the specific
amounts due. Although the witness did not create the proposed
judgment, she read from it for the express purpose of providing the trial
judge with amounts for interest, taxes, hazard insurance, property
inspection fees, an expert affidavit review, and a courier fee, all sought to
be recouped from appellants. The trial judge stated the document would
not be placed in evidence.
The witness never produced the actual business records that
substantiated those figures. Counsel for appellants moved for
involuntary dismissal at the close of the bank’s case, arguing in part that
the bank failed to prove the amounts allegedly owed because no evidence
was admitted to support the figures discussed above other than the
witness reading from a document that was not marked as an exhibit or
entered into evidence.
The facts of this case are analogous to those described in Peuguero v.
Bank of America, N.A., 169 So. 3d 1198, 1200-01 (Fla. 4th DCA 2015).
There, “the only evidence of the amount of interest owed . . . came from
[a] witness, who merely testified that the amount written on a proposed
final judgment was correct.” Id. at 1203. Like this case, the “proposed
judgment was never admitted into evidence.” Id. We noted:
“A document that was identified but never admitted into
evidence as an exhibit is not competent evidence to support
a judgment.” Wolkoff v. Am. Home Mortg. Servicing, Inc., 153
So. 3d 280, 281–82 (Fla. 2d DCA 2014). In Wolkoff, the
Second District reversed a judgment of foreclosure where the
plaintiff’s witness “merely confirmed that the totals given to
him on a proposed final judgment ‘seemed accurate’” and
never actually stated the total amount owed. Id. at 281.
Similarly, in Sas v. Federal National Mortgage Ass’n, 112 So.
3d 778, 779 (Fla. 2d DCA 2013), the plaintiff presented
witness testimony of the specific amount owed, but failed to
produce the business records upon which the witness relied.
Id.
As we held in Peuguero, this case appears to be closer to Sas than
Wolkoff. “‘[L]ike the plaintiff in Sas, [here] the Bank established the
amount of indebtedness through witness testimony, even though that
testimony concededly was inadmissible hearsay. This is unlike Wolkoff,
where the plaintiff failed to produce any evidence, admissible or not,
supporting the amount of indebtedness.’” Id. at 1204 (quoting
Beauchamp v. Bank of N.Y., 150 So. 3d 827, 829 n.2 (Fla. 4th DCA
2014)).
Based on the foregoing, we affirm the judgment of foreclosure, but
reverse as to the amounts in the final judgment relating to interest,
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hazard insurance, the property inspection fee, the expert affidavit review,
and the courier fee. We remand the case for further proceedings to
determine the amounts owed. See id. (remanding for proper
“determination of amounts owed”); see also Beauchamp, 150 So. 3d at
828 (noting the bank’s “failure to provide admissible evidence that would
establish the proper amount due on the note was not harmless error,”
and “remand[ing] the case for further proceedings to determine that
amount”).
Affirmed in part; Reversed in part; Remanded for further proceedings
consistent with this opinion.
DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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