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Weisenberg v. Deutsche Bank Nat'l Trust Co.

District Court of Appeal of Florida, Fourth District.
Jun 13, 2012
89 So. 3d 1111 (Fla. Dist. Ct. App. 2012)

Summary

finding business records exception satisfied where bank's witness was a supervisor at bank's servicing agent with personal knowledge of bank's internal process for applying loan payments and calculating balances, and who was familiar with bank's record-keeping system, and knew how payment data was uploaded from bank's computer system to servicing agent's system

Summary of this case from Bank of Am., N.A. v. Delgado

Opinion

No. 4D11–45.

2012-06-13

Thelma WEISENBERG and Deena Weisenberg, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Harbor View Mortgage Loan Trust Mortgage Loan Pass–Through Certificates Series 2007–5, Appellee.

Peter Ticktin, Jessica Ticktin, Joshua Bleil and Megan Alexander of The Ticktin Law Group, P.A., Deerfield Beach, for appellants. Heidi J. Weinzetl and Ronald M. Gache of Shapiro, Fishman & Gache, LLP., Boca Raton, for appellee.



Peter Ticktin, Jessica Ticktin, Joshua Bleil and Megan Alexander of The Ticktin Law Group, P.A., Deerfield Beach, for appellants. Heidi J. Weinzetl and Ronald M. Gache of Shapiro, Fishman & Gache, LLP., Boca Raton, for appellee.
PER CURIAM.

Thelma and Deena Weisenberg appeal a summary final judgment of foreclosure in favor of Deutsche Bank, claiming that the loan servicer's affidavit constituted inadmissible hearsay. We find that the affidavit complied with the requirements of the business records exception and affirm.

In support of its motion for summary judgment, the bank filed the affidavit of Cynthia Stevens, a supervisor at the bank's servicing agent, American Home Mortgage Servicing, Inc., who stated that appellants owed in excess of $444,000. After deposing Stevens, appellants moved to strike her affidavit, claiming she did not have sufficient personal knowledge of the matters sworn to in the affidavit. The trial court denied the motion to strike and entered a final judgment of foreclosure.

Business records may be admitted under section 90.803(6) if the proponent of the evidence demonstrates the following through a records custodian or other qualified person:

(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.
Yisrael v. State, 993 So.2d 952, 956 (Fla.2008).

In Glarum v. LaSalle Bank National Ass'n, 83 So.3d 780 (Fla. 4th DCA 2011), we found that the affidavit of a loan servicing specialist constituted inadmissible hearsay where the specialist could not state in his deposition whether the records he relied upon were made in the regular course of business. He “did not know who, how, or when the data entries were made into [the servicer's] computer system.” Id. at 782. He had “[n]o idea” who made the entries when payments were made or when the account needed to be updated. Id. Nor did he know whether there was a department that input account activity into the databases. The specialist had a total lack of knowledge as to how his company's own data was produced.

Unlike in Glarum, the deposition excerpts show that Stevens knew how the data was produced. Stevens testified that the cashiering department was responsible for collecting and applying payments. Information relating to the servicing of the loans was kept in a program known as the mortgage servicing platform, which she relied on to verify the specific figures in her affidavit. Her testimony demonstrated that she was familiar with the bank's record-keeping system and had knowledge of how the data was uploaded into the system.

In sum, we find that the affidavit satisfied the business records exception. As such, we affirm the denial of appellants' motion to strike and affirm the final judgment of foreclosure.

Affirmed.

POLEN, GROSS and LEVINE, JJ., concur.


Summaries of

Weisenberg v. Deutsche Bank Nat'l Trust Co.

District Court of Appeal of Florida, Fourth District.
Jun 13, 2012
89 So. 3d 1111 (Fla. Dist. Ct. App. 2012)

finding business records exception satisfied where bank's witness was a supervisor at bank's servicing agent with personal knowledge of bank's internal process for applying loan payments and calculating balances, and who was familiar with bank's record-keeping system, and knew how payment data was uploaded from bank's computer system to servicing agent's system

Summary of this case from Bank of Am., N.A. v. Delgado

finding business records exception satisfied where bank's witness was a supervisor at bank's servicing agent who had personal knowledge of bank's internal process for applying loan payments and calculating balances, was familiar with bank's record-keeping system, and knew how payment data was uploaded from bank's computer system to servicing agent's system

Summary of this case from Hunter v. Aurora Loan Services, LLC

finding business records exception satisfied where bank's witness was a supervisor at bank's servicing agent who had personal knowledge of bank's internal process for applying loan payments and calculating balances, was familiar with bank's record-keeping system, and knew how payment data was uploaded from bank's computer system to servicing agent's system

Summary of this case from Hunter v. Aurora Loan Servs., LLC

distinguishing Glarum where the supervisor at the bank's servicing agent's deposition showed that she “knew how the data was produced” and “demonstrated that she was familiar with the bank's record-keeping system and had knowledge of how the data was uploaded into the system”

Summary of this case from Bank of N.Y. v. Calloway

distinguishing Glarum where the supervisor at the bank's servicing agent's deposition showed that she “knew how the data was produced” and “demonstrated that she was familiar with the bank's record-keeping system and had knowledge of how the data was uploaded into the system”

Summary of this case from Bank of N.Y. v. Calloway

In Weisenberg, we held that, "[u]nlike in Glarum, the deposition excerpts show that [the affiant] knew how the data was produced" and "[h]er testimony demonstrated that she was familiar with the bank's recordkeeping system and had knowledge of how the data was uploaded into the system."

Summary of this case from Holt v. Calchas, LLC

In Weisenberg, we held that the trial court did not err in finding that a loan servicer's affidavit regarding the borrower's indebtedness met the requirements of the business records exception.

Summary of this case from Cayea v. CitiMortgage, Inc.
Case details for

Weisenberg v. Deutsche Bank Nat'l Trust Co.

Case Details

Full title:Thelma WEISENBERG and Deena Weisenberg, Appellants, v. DEUTSCHE BANK…

Court:District Court of Appeal of Florida, Fourth District.

Date published: Jun 13, 2012

Citations

89 So. 3d 1111 (Fla. Dist. Ct. App. 2012)

Citing Cases

Holt v. Calchas, LLC

Id. at 783.Subsequently, we distinguished the facts of Glarum in Weisenberg v. Deutsche Bank National Trust…

Holt v. Calchas, LLC

Id. at 783. Subsequently, we distinguished the facts of Glarum in Weisenberg v. Deutsche Bank National Trust…