       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                  MARK B. SACKS and BARBARA SACKS,
                                Appellants,

                                     v.

  THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, as
Trustee for the Certificate holders of the CWMBS, Inc., Mortgage Pass-Through
  Trust 2005-HYB7 Mortgage Pass-Through Certificates, Series 2005-HYB7,
                                 Appellee.

                              No. 4D17-2122

                            [August 22, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Roger B. Colton, Judge; L.T. Case No. 50-2016-CA-003944-
XXXX-MB.

  Bruce K. Herman of The Herman Law Group, P.A., Fort Lauderdale, for
appellants.

  Alexis Fields of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort
Lauderdale, for appellee.

FORST, J.

    Appellants Mark and Barbara Sacks appeal a final summary judgment
of foreclosure in favor of Appellee, The Bank of New York Mellon (“the
Bank”). Appellants raise several issues on appeal. We affirm without
comment with respect to all issues with one exception. The trial court
erred in admitting the payment history submitted by the Bank to establish
the amount owed under the note. Accordingly, we reverse the judgment
and remand for an evidentiary hearing. We otherwise affirm the judgment
of foreclosure.

                               Background

    Appellants defaulted on their mortgage, and the Bank filed a foreclosure
complaint and subsequently moved for summary judgment. In support of
its motion, the Bank filed a tabulation of Appellants’ payment history
under the terms of the note and mortgage and an accompanying affidavit
seeking to establish the business records predicate for admission. The
affiant was a document coordinator of the Bank’s servicer, Bayview Loan
Servicing (“BLS”). The payment history attached to the affidavit was
generated by BLS and it incorporated tabulations by Bank of America
(“BoA”), a prior servicer of the loan. The entirety of the affidavit’s
discussion of BLS’s business records was as follows:

      The information in this affidavit is taken from BLS’s business
      records. I have personal knowledge of BLS’s procedures for
      creating these records. They are: (a) made at or near the time
      of the occurrence of the matters recorded by persons with
      personal knowledge of the information in the business record,
      or from information transmitted by persons with personal
      knowledge; (b) kept in the course of BLS’s regularly conducted
      business activities; and (c) it is the regular practice of BLS to
      make such records.

Appellants did not challenge the admissibility of the payment history or
any other affidavit filed by the Bank in support of its summary judgment
motion. The trial court granted the Bank’s motion for summary judgment
and entered a final judgment of foreclosure against Appellants.

                                 Analysis

   “The standard of review for evidentiary rulings is abuse of discretion.”
Holt v. Calchas, LLC, 155 So. 3d 499, 503 (Fla. 4th DCA DCA 2015).
However, “whether evidence is hearsay and whether evidence fits within
an exception to the hearsay rule are questions of law reviewed de novo.”
Washburn v. Washburn, 211 So. 3d 87, 90 (Fla. 4th DCA 2017).
“[G]enerally the courts hold the moving party for summary judgment or
decree to a strict standard and the papers supporting [the movant’s]
position are closely scrutinized . . . .” OneWest Bank, FSB v. Jasinski, 173
So. 3d 1009, 1014 (Fla. 2d DCA 2015) (quoting Gonzalez v. Chase Home
Fin. LLC, 37 So. 3d 955, 958 (Fla. 3d DCA 2010)).

    “All affidavits in support of a motion for summary judgment ‘shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein.’” Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1167 (Fla. 1st
DCA 2014) (quoting Fla. R. Civ. P. 1.510(e)). Therefore, no objection to the
sufficiency of the affidavit was necessary below.

   Here, the Bank sought to meet the business records exception to
hearsay for its records, including the payment history, via affidavit. The

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affidavit needed to demonstrate:

      (1) that the record was made at or near the time of the event;
      (2) that it was made by or from information transmitted by a
      person with knowledge; (3) that it 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.

Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1069 (Fla. 4th DCA 2015)
(citing Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)).

   Because the servicer’s (BLS) records incorporated a payment history
generated by a predecessor servicer (BoA), the additional requirements of
demonstrating reliance and trustworthiness attached.         This Court’s
opinion in Calloway explains:

      Where a business takes custody of another business’s records
      and integrates them within its own records, the acquired
      records are treated as having been “made” by the successor
      business, such that both records constitute the successor
      business’s singular “business record.”       United States v.
      Adefehinti, 510 F.3d 319, 326 (D.C. Cir. 2007), as amended
      (Feb. 13, 2008). However, since records crafted by a separate
      business lack the hallmarks of reliability inherent in a
      business’s    self-generated   records,   proponents    must
      demonstrate not only that “the other requirements of [the
      business records exception rule] are met” but also that the
      successor business relies upon those records and “the
      circumstances indicate the records are trustworthy.” United
      States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993).

      ....

      This principle is codified within section 90.803(6) itself, which
      provides trial courts the ability to exclude documents
      otherwise fitting the business records exception where “the
      sources of information or other circumstances show lack of
      trustworthiness.” § 90.803(6)(a), Fla. Stat. (2008).

157 So. 3d at 1071 (alteration in original) (emphasis added) (footnote
omitted). Trustworthiness can be established by either (1) “providing
evidence of a business relationship or contractual obligation between the
parties that ensures a substantial incentive for accuracy,” or (2) “the

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successor business itself may establish trustworthiness by independently
confirming the accuracy of the third-party’s business records upon
receipt.” Id. at 1072.

    In Calloway, we found the bank’s witness confirmed the
trustworthiness of the relied-upon third-party business records by
testifying that the bank reviewed the payment history for accuracy before
inputting the payment information into its own system.            Id.   We
additionally noted that, “even had [the witness] not so testified, the
circumstances of the loan transfer itself would have been sufficient to
establish trustworthiness given the business relationships and common
practices inherent among lending institutions acquiring and selling loans.”
Id.

   Somewhat similarly, in Nationstar Mortg., LLC v. Berdecia, 169 So. 3d
209 (Fla. 5th DCA 2015), the court found a witness’s entry of records
created by a prior servicer proper “so long as all the requirements of the
business records exception are satisfied, the witness can testify that the
successor business relies upon those records, and the circumstances
indicate the records are trustworthy.” Nationstar Mortg. at 216; see also Le
v. U.S. Bank, 165 So. 3d 776, 778 (Fla. 5th DCA 2015) (holding that a
witness properly laid the foundation for a prior servicer’s records because
the witness “testified that she was familiar with industry standards in
recording and maintaining the records and that the records received from
the prior servicer were tested for accuracy and compliance with industry
standards via a boarding process before the information was input”).

    On the other hand, the Fifth District reversed a judgment of foreclosure
in Hidden Ridge Condominium Homeowners Ass’n, Inc. v. Onewest Bank,
N.A., 183 So. 3d 1266 (Fla. 5th DCA 2016), in part due to the failure of an
affidavit filed on behalf of the bank to address whether the foreclosing bank
verified a predecessor’s payment history for accuracy and compliance with
industry standards. Id. at 1270. The affidavit, in fact, made no mention
of the predecessor. Id. at 1268; see also Channell v. Deutsche Bank Nat’l
Tr. Co., 173 So. 3d 1017, 1020 (Fla. 2d DCA 2015) (remanding for
establishment of the amount due because there was no testimony on
whether a predecessor’s loan documents had been verified for accuracy
nor whether the witness was familiar with the predecessor’s record-
keeping system).

   Here, the relevant portion of the Bank representative’s affidavit merely
recited the four elements of the business records exception, as applied to
BLS’s own records. Just as in Hidden Ridge Condominium, the affidavit
said nothing about incorporating the predecessor servicer’s payment

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records or, indeed, anything about the predecessor at all. Without any
explanation as to how BoA’s payment records were verified for accuracy or
how the Bank acquired them, the trustworthiness requirement was not
met. Thus, we must conclude “[t]he record fails to demonstrate that an
adequate foundational predicate was established, and the loan . . . records
relied on to establish the outstanding debt constituted inadmissible
hearsay.” Channell, 173 So. 3d at 1020 (citing §§ 90.802, 90.803(6), Fla.
Stat. (2014)). Without the payment history, there was insufficient evidence
to support the amount owed under the loan, and summary judgment was
granted in error on this point.

                               Conclusion

   While we otherwise affirm the foreclosure judgment, the Bank failed to
establish a foundation for entry of its business records concerning the
amount due and owing. Thus, “there is insufficient evidence to support
the amount due and owing under the loan,” and “we must reverse and
remand for further proceedings to properly establish the amount due and
owing.” Channell, 173 So. 3d at 1020.

   Affirmed in Part, Reversed and Remanded in Part.

WARNER and MAY, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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