The recent case of Rivera v. The Bank of New York Mellon, 2D17-4417, the Second District Court of Appeal applies its analysis of hearsay and the business records exception in reversing the lower court’s summary judgment in favor of the bank.
The Bank’s affidavit in support of its summary judgment included a printout of a mailing list, purporting to show that the default letter that was required to be sent as a condition precedent to any foreclosure action pursuant to paragraph 15 and 22 of the mortgage. However, the affiant fails to set forth any sworn facts that would show she had any knowledge regarding the company that mailed out Plaintiff’s or Plaintiff’s agent’s default letters.
The Second District Court of appeal is clear that simply placing a document within the business record does not get the document past a hearsay objection “merely because it has been recorded in the regular course of business activity.” The affiant must be familiar with and have knowledge of how the company produces the data.
While this hearsay objection should have been sustained by the trial court and ultimately caused the Second District Court of Appeal in Rivera v. The Bank of New York Mellon to reverse the summary judgment in favor of the bank, its logic is sound and can be used in many different types of cases in which a party is defending a summary judgment motion.
In foreclosure cases, the default or acceleration letter is normally a condition precedent to the filing of the foreclosure action itself. If the bank or its agent representing it in the foreclosure cannot prove that the letter was sent, then the bank cannot prevail at either a summary judgment proceeding or trial.
We look forward to using this case in defending foreclosure cases, other debt related cases and more. We are pleased to be representing Ms. Rivera and in helping homeowners keep their home, even in the after math of Stopa Law Firm’s closing its doors, there is still hope for homeowners in foreclosure, to find modifications and other work out options. At Stewart & Riley, we use mediation as a tool to help our clients. If your previous counsel avoided mediation at all costs, we can show you why that was likely a mistake. If you have any questions, please call 727-312-3748.
From the Rivera opinion, Hearsay information does not become admissible "merely because it has been recorded in the regular course of business." Id. (quoting Van Zant, 372 So. 2d at 503). Although a loan servicer's representative need not "have personal knowledge of the documents being authenticated," the witness "must be familiar with and have knowledge of how the"
business produces its data. Id. (quoting Sanchez v. SunTrust Bank, 179 So. 3d 538, 541 (Fla. 4th DCA 2015)).
This is the quintessential lesson when prosecuting or defending summary judgment motions containing business records. This is a legal precedent that, if used correctly, can be used to prevail in cases and, if used incorrectly, used to defend cases.