         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

DANIELA FLOYD,

              Appellant,

 v.                                                      Case No. 5D13-4416

BANK OF AMERICA, N.A., ETC.,

           Appellee.
________________________________/

Opinion filed June 24, 2016

Appeal from the Circuit Court
for Orange County,
Lisa T. Munyon, Judge.

Michael S. Wickenhauser, Kendrick
Almaguer and Alyssa Pickles, of The Ticktin
Law Group, P.A., Deerfield Beach, for
Appellant.

Mary L. Walter, Tricia J. Duthiers, J.
Randolph Liebler and Kristen A. Tajak, of
Liebler, Gonzalez & Portuondo, P.A.,
Miami, for Appellee.

PER CURIAM.

       Daniela Floyd appeals the trial court’s final summary judgment of foreclosure. The

record indicates that there are genuine issues of material fact related to Bank of America’s

standing to foreclose and the admissibility of the evidence relied on by Bank of America

in its motion for summary judgment. Accordingly, we find that summary judgment was

inappropriate and remand for further proceedings.
       The original note and mortgage, executed in 2006, identified Countrywide Home

Loans, Inc. (“Countrywide”) as the lender. After Floyd failed to make the payments

required by the note, BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans

Servicing, LP (“BAC”), sent Floyd a notice of default stating that it intended to accelerate

the note if the breach was not cured within thirty days. When Floyd failed to cure the

default, BAC filed a mortgage foreclosure complaint. BAC alleged that it was the servicer

of the loan, it had the authority to act on behalf of the owner in pursuing the action, and

all conditions precedent to the acceleration of the note and mortgage had been met. BAC

attached to its complaint copies of both the original note and mortgage. The copy of the

note included no blank or special indorsements.

       After suit had been filed, MERS, as nominee for Countrywide and its successors

and assigns, assigned the mortgage to Bank of America, successor by merger to BAC.

Bank of America then filed a motion to substitute as party plaintiff, claiming that BAC had

merged into Bank of America after the filing of the complaint. The trial court granted this

motion and Bank of America moved for summary judgment, claiming that there were no

genuine issues of material fact. Along with its motion, Bank of America filed a supporting

affidavit from its officer, Dwayne Nuñez, as well as another copy of the note, which now

included an undated blank indorsement from Countrywide. The same indorsement also

appeared on the original note that Bank of America filed during the summary judgment

hearing. Following the hearing, the trial court entered final judgment of foreclosure in Bank

of America’s favor.

       Summary judgment will be granted only if the movant shows “there is no genuine

issue as to any material fact, and that the moving party is entitled to a judgment as a




                                             2
       Second, there was an insufficient foundation to admit Nuñez’s affidavit under the

business records exception to the hearsay rule. 1 In his affidavit, Nuñez indicated that he

had personal knowledge of Bank of America’s procedures for creating records and was

familiar with those records connected with Floyd’s loan. He also stated that the records

were made at or near the time of occurrence, by individuals with personal knowledge, in

the course of Bank of America’s regularly conducted business activities, and as Bank of

America’s regular practice. His affidavit stated that Bank of America was in possession of

the original note, and took delivery of the note after Countrywide indorsed the note in

blank but prior to the inception of the litigation.

       Nuñez’s testimony at his deposition, however, shows that he lacked particular

knowledge of Bank of America’s record-keeping procedures and was not sufficiently

acquainted with Bank of America’s business practices to substantiate the data on the




       1   Section 90.803(6)(a) sets out the business records exception and reads, in part:

       (6) Records of regularly conducted business activity.--

           (a) A memorandum, report, record, or data compilation, in any form, of
               acts, events, conditions, opinion, or diagnosis, made at or near the
               time by, or from information transmitted by, a person with knowledge,
               if kept in the course of a regularly conducted business activity and if it
               was the regular practice of that business activity to make such
               memorandum, report, record, or data compilation, all as shown by the
               testimony of the custodian or other qualified witness, . . . unless the
               sources of information or other circumstances show lack of
               trustworthiness. . . .

§ 90.803(6)(a), Fla. Stat. (2013).

      We review a trial court’s evidentiary ruling for an abuse of discretion. Hidden Ridge
Condo. Homeowners Ass’n v. Onewest Bank, N.A., 183 So. 3d 1266, 1268-69 (Fla. 5th
DCA 2016). The court’s discretion is limited, however, by the rules of evidence. Id. at
1269.


                                                5
v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012). Importantly,

standing must be established as of the date of the filing of the initial foreclosure complaint.

Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 322 (Fla. 5th DCA 2013); Green v.

JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013).

       Bank of America relied on two pieces of evidence to establish its standing to

foreclose: 1) an assignment from MERS, as assignee for Countrywide and its successors

and assigns, to Bank of America, and 2) Nuñez’s affidavit, attempting to establish a

foundation to admit an indorsed copy of the note. Because the assignment is dated after

the filing of the complaint, though, it cannot prove that Bank of America had standing to

foreclose at the time of the complaint. Bank of America must, then, rely on Nuñez’s

affidavit to establish its standing to foreclose.

       There are two problems with Nuñez’s affidavit. First, the affidavit does not resolve

all the material issues in this case. Floyd specifically raised as an issue the inconsistency

between the unindorsed copy of the note attached to the initial complaint and the original

indorsed note entered during the summary-judgment proceedings. Neither Nuñez nor

Bank of America offered any explanation as to why the blank indorsement appears on the

note filed at the hearing, but not on the copy filed with the complaint. BAC had admitted

in its response to Floyd’s request for admissions that the copy of the note attached to the

complaint, bearing no indorsements, was true and accurate, but Nuñez and Bank of

America continued to rely on the note entered at summary judgment. Therefore, we find

that a material issue remains as to when the note was indorsed and how Bank of America

obtained standing to bring its suit.




                                               4
       Second, there was an insufficient foundation to admit Nuñez’s affidavit under the

business records exception to the hearsay rule. 1 In his affidavit, Nuñez indicated that he

had personal knowledge of Bank of America’s procedures for creating records and was

familiar with those records connected with Floyd’s loan. He also stated that the records

were made at or near the time of occurrence, by individuals with personal knowledge, in

the course of Bank of America’s regularly conducted business activities, and as Bank of

America’s regular practice. His affidavit stated that Bank of America was in possession of

the original note, and took delivery of the note after Countrywide indorsed the note in

blank but prior to the inception of the litigation.

       Nuñez’s testimony at his deposition, however, shows that he lacked particular

knowledge of Bank of America’s record-keeping procedures and was not sufficiently

acquainted with Bank of America’s business practices to substantiate the data on the




       1   Section 90.803(6)(a) sets out the business records exception and reads, in part:

       (6) Records of regularly conducted business activity.--

           (a) A memorandum, report, record, or data compilation, in any form, of
               acts, events, conditions, opinion, or diagnosis, made at or near the
               time by, or from information transmitted by, a person with knowledge,
               if kept in the course of a regularly conducted business activity and if it
               was the regular practice of that business activity to make such
               memorandum, report, record, or data compilation, all as shown by the
               testimony of the custodian or other qualified witness, . . . unless the
               sources of information or other circumstances show lack of
               trustworthiness. . . .

§ 90.803(6)(a), Fla. Stat. (2013).

      We review a trial court’s evidentiary ruling for an abuse of discretion. Hidden Ridge
Condo. Homeowners Ass’n v. Onewest Bank, N.A., 183 So. 3d 1266, 1268-69 (Fla. 5th
DCA 2016). The court’s discretion is limited, however, by the rules of evidence. Id. at
1269.


                                                5
affidavit. Nunez was also unaware of when the indorsement was placed on the note, or

even if that information was in Bank of America’s system. See Hunter v. Aurora Loan

Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014) (finding that the testimony of a witness

failed to establish the necessary foundation for admitting evidence under the business

records exception because the witness was unable to substantiate when the records were

made, whether the information they contained derived from a person with knowledge, or

whether the original owner regularly made such records); Glarum v. LaSalle Bank Nat’l

Ass’n, 83 So. 3d 780, 782-83 (Fla. 4th DCA 2011) (finding that an affidavit of a loan

servicing specialist was inadmissible hearsay because the specialist did not know who

entered the data that he relied on, whether the computer entries were accurate when

made, or how incorporated data from the prior loan servicer was derived).

      Because genuine issues of material fact remain as to whether Bank of America

had standing at the time the complaint was filed and because Nuñez lacked the personal

knowledge required to admit Bank of America’s business records, we find the trial court

erred in granting summary judgment.


      REVERSED AND REMANDED.

PALMER, COHEN and EDWARDS, JJ., concur.




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