I lost a trial once.
I appealed. I lost.
I should not have lost. The case was tried and the issues were raised. The conflicts were preserved for the record.
The case was briefed properly and it was argued before the appellate court properly.
But the court could not reverse. And now, on similar facts, they reverse:
Andre Sas appeals the trial court’s final judgment of foreclosure in favor of
Federal National Mortgage Association (Fannie Mae). Although Sas raises several
challenges to the final judgment, we find merit in only one of his arguments. Sas argues
that Fannie Mae representative Jon Greenlee’s oral testimony about the amount of the
debt owed by Sas to Fannie Mae was hearsay and, therefore, legally insufficient to
establish the amount of the debt because Fannie Mae never admitted into evidence any
business records supporting Greenlee’s testimony. We agree with this argument.
Therefore, while we affirm the final judgment of foreclosure, we reverse and remand for
further proceedings to determine the amount of the debt owed.
In 2007, Sas financed the purchase of a residence by executing a promissory note and mortgage. In 2009, after Sas defaulted, Chase Home Finance, LLC, as servicing agent for Fannie Mae, filed a foreclosure action against Sas. Fannie Mae was eventually substituted as plaintiff in July 2011. At the bench trial, the only evidence of the total amount due and owed by Sas was testified to by Greenlee, a litigation specialist with Seterus, Inc. Seterus had been Fannie Mae’s mortgage loan servicer since August 1, 2010. As a litigation specialist for Seterus, Greenlee handled contested foreclosure matters and reviewed business records in preparation for trial.
However, he had no personal knowledge of the amount of the debt in this case and
testified about the amount based only on his review of Seterus’s business records
related to the loan. Specifically, Fannie Mae asked Greenlee: “[G]oing back to review
of the damages in this case, have you had an opportunity based on your business
records to review the total amount due and owing in this case?” Greenlee looked at his
notes and testified that the total amount due and owing was $240,756.88. Fannie Mae
followed up asking, “And that $240,756.88, that particular figure, does that represent all
fees and costs due and owing for this particular case based on your review of your
business records?” Greenlee replied, “Yes, it does.” Fannie Mae did not produce the
business records upon which Greenlee relied to testify about the debt amount, and the
trial court overruled Sas’s objection to the testimony as being hearsay. Sas asked to
see the personal notes that Greenlee used to refresh his recollection about the amount,
but the trial court denied that request. At the end of trial, the court entered a final
judgment of foreclosure in the amount of $240,756.88.
A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. Sottilaro v. Figueroa, 86 So. 3d 505, 507 (Fla. 2d DCA), review denied,103 So. 3d 139 (Fla. 2012). Here, the trial court abused its discretion in allowing Greenlee to testify over objection about the contents of Fannie Mae’s business records to prove the amount of the debt without having first admitted those business records. See Dreyer v. State, 46 So. 3d 613, 615 (Fla. 2d DCA 2010) (holding that trial court erred in allowing witness to offer hearsay testimony regarding the amount of money the defendant stole to prove the amount of restitution because the witness had no personal knowledge of the amount at issue and the testimony was based on information received from employees of the victim’s financial institution and from financial statements received from those institutions); A.S. v. State, 91 So. 3d 270, 271 (Fla. 4th DCA 2012)
(“Because the actual estimate was not admitted into evidence, the testimony concerning
its contents should have been stricken. Without this evidence, the record does not
provide competent, substantial evidence demonstrating the essential element of
value.”); Richardson v. State, 875 So. 2d 673, 677 (Fla. 1st DCA 2004) (holding that trial
court erred in allowing witness with no personal knowledge to testify about the amount
of money taken from a cash register based on the contents of a record that was never
introduced into evidence); Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA
1998) (holding that business record exception to hearsay did not authorize hearsay
testimony about the contents of business record reflecting the value of merchandise
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stolen when the business record was not admitted into evidence); Cullimore v. Barnett
Bank of Jacksonville, 386 So. 2d 894, 895 (Fla. 1st DCA 1980) (“The business records
exception is . . . inapplicable because there were no records or reports offered into
evidence; there was only testimony concerning communications made between the
dispatcher and the deputy. Accordingly, we conclude that the hearsay testimony should
have been excluded.”).
Based on the foregoing, we reverse and remand for further proceedings to properly establish the amounts allegedly due and owing. See Mazine v. M&I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011) (remanding for further proceedings where bank failed to lay proper foundation for introduction into evidence of an affidavit of the amounts allegedly due and owing); see generally Dreyer, 46 So. 3d at 615 (remanding for new hearing to determine amount of restitution); Mitchell Bros., Inc. v. Westfield Ins. Co., 24 So. 3d 1269, 1270 (Fla. 1st DCA 2009) (remanding for further proceedings to determine damages amount through nonhearsay evidence).