Deutsche Bank v. Merced

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

DEUTSCHE BANK TRUST COMPANY
AMERICAS, AS TRUSTEE FOR RESIDENTIAL
ACCREDIT LOANS, INC., MORTGAGE
ASSET BACKED PASS-THROUGH
CERTIFICATES SERIES 2007-QS11,

Appellant,

v. Case No. 5D16-3486

CARLOS MERCED, JR.
and ALETHEA MERCED,

Appellees.
________________________________/

Opinion filed March 2, 2018

Appeal from the Circuit Court for
Brevard County,
John Dean Moxley, Jr., Senior
Judge.
William L. Grimsley and N. Mark New ll,
of McGlinchey Stafford, Jacksonville,
and Jennifer M. Chapkin of McGlinchey
Stafford, Fort Lauderdale, for Appellant.

Mark P. Stopa, of Stopa Law Firm,
Tampa, for Appellees.

COHEN, C.J.,

Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit

Loans, Inc., Mortgage Asset Backed Pass-Through Certificates Series 2007-QS11

(“Deutsche Bank”), appeals a final judgment of involuntary dismissal entered in favor of

Carlos Merced, Jr. and Alethea Merced. We reverse and remand for a new trial.
 In 2015, Deutsche Bank filed a complaint seeking to foreclose the Merceds’

residential mortgage. Before trial, the court entered a partial summary judgment finding

that Deutsche Bank had standing to foreclose, and that ruling has not been challenged

on appeal. The court held a non-jury trial on the remaining issues of compliance with

conditions precedent and the amount due and owing on the note.

At trial, Deutsche Bank presented Dorothy Thomas as a witness. Thomas is a

corporate representative of PNC Bank, National Association S/B/M to National City

Mortgage, a division of National City Bank (“PNC”), the servicer of the subject loan.

Thomas testified that she had worked as a senior default litigation specialist for PNC since

2009. She also testified that she had worked in the same position at a division of National

City Bank since 1992. National City was the original servicer and merged with PNC in

2009.

Thomas testified that she was familiar with the Merceds’ mortgage account based

on her review of the payment history, correspondence such as PNC’s demand letter to

the Merceds, system notes, and copies of the note, mortgage, and assignments that were

contained in PNC’s system of record. She testified to the programs PNC used to maintain

records and that the records in the system were true and accurate copies of what was

scanned into PNC’s system.

Deutsche Bank then moved to enter a series of business record exhibits into

evidence, including a limited power of attorney and a copy of a loan modification

document. Thomas testified to recognizing and personally reviewing all of the proposed

documents, her familiarity with PNC’s and National City’s policies and procedures

regarding the documents, that the documents were created near or at the time of the

2
respective event by a person with knowledge, and to PNC’s duty to maintain the

documents truthfully and accurately in its regular course of business. The Merceds

stipulated to the entry of several of the documents into evidence but moved to exclude

the power of attorney for lack of foundation. The court excluded the power of attorney,

finding that it did not qualify for the business records exception to hearsay.

The Merceds then moved to strike Thomas as a witness based on the exclusion

of the power of attorney, arguing that she lacked contractual authority to appear on behalf

of Deutsche Bank. The court agreed and struck Thomas as a witness. Therefore,

Deutsche Bank was unable to enter several business records into evidence, including a

copy of the loan modification document. Ultimately, the trial court granted the Merceds’

motion for involuntary dismissal based on the absence of the loan modification document,

concluding that it was unable to calculate the amount due and owing. This appeal

followed.

The dispositive issue on appeal is that the trial court abused its discretion in striking

Thomas as a witness based on the exclusion of the power of attorney. Proof of contractual

authority to testify is not required for a witness to lay the foundation for the business

records exception to hearsay because a witness may testify to matters within his or her

personal knowledge. See U.S. Bank Nat’l Ass’n v. Clarke, 192 So. 3d 620, 621 n.1 (Fla.

4th DCA 2016). Section 90.803(6), Florida Statutes, provides that business records may

be “shown by the testimony of the custodian or other qualified witness” and does not

impose the requirement that such individuals be contractually authorized to so testify. 1

1 Although the power of attorney was excluded, it was irrelevant to Thomas’s ability
to testify on behalf of PNC. The excluded power of attorney would be relevant to the issue
of PNC’s standing to foreclose as servicer of the loan. See Russell v. Aurora Loan Servs.,

3
 Thomas was a qualified witness, and the court abused its discretion in striking her

testimony. Under the business records exception, a party must present the business

record via one of the following: “(1) testimony of the records custodian or other qualified

witness, pursuant to section 90.803(6)(a), Florida Statutes; (2) stipulation; or (3)

certification or declaration . . . . [T]he authenticating witness need not be ‘the person who

actually prepared the business records.’” Nationstar Mortg., LLC. v. Berdecia, 169 So. 3d

209, 213 (Fla. 5th DCA 2015) (citations omitted). The party must then establish that “(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.” Id. at 212–13 (citing Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)).

Thomas testified that she had worked as a senior default litigation specialist for

National City and PNC for twenty-four years, that she was familiar with National City and

PNC’s policies and procedures with respect to servicing loans, and that PNC was the

servicer of the loan at issue. She also testified that she was familiar with the Merceds’

mortgage account, the documents in their account were created near or at the time of the

occurrence of the event by a person with knowledge, PNC had a duty to maintain those

documents truthfully and accurately, and PNC kept the documents in its regular course

of business. Thus, Thomas’s testimony demonstrated sufficient personal knowledge of

PNC’s business relationship with Deutsche Bank and PNC’s record-keeping system to

163 So. 3d 639 (Fla. 2d DCA 2015) (finding that power of attorney by which trustee that
owned mortgage loan granted limited powers to current loan servicer was insufficient to
establish that prior loan servicer, and therefore current loan servicer, had standing to
foreclose at the time it filed the foreclosure action). Here, however, PNC was not the party
attempting to foreclose.

4
lay the foundation for Deutsche Bank’s business records, including the dispositive copy

of the loan modification document. Cf. Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla.

4th DCA 2015) (finding that mortgagee’s witness laid a proper foundation to admit

mortgagor’s payment history under the business records hearsay exception based on her

“demonstrated knowledge of the accuracy of the records”).

We decline the Merceds’ invitation to treat the error in excluding Thomas as

harmless. The effect of the court striking Deutsche Bank’s sole witness was to deny it the

right to introduce dispositive evidence. See Dobson v. U.S. Bank Nat’l Ass’n, 217 So. 3d

1173, 1174 (Fla. 5th DCA 2017) (explaining that the due process right to be heard

includes the right “to introduce evidence at a meaningful time and in a meaningful

manner,” as well as the right “to testify and call witnesses on [a party’s] behalf” (citations

omitted)). Accordingly, we reverse and remand for a new trial.

REVERSED AND REMANDED.

SAWAYA and BERGER, JJ., concur.

5