Filing # 15432978 Electronically Filed 07/01/2014 11:50:21 AM
RECEIVED, 7/1/2014 11:53:54, John A. Tomasino, Clerk, Supreme Court
IN THE SUPREME COURT OF FLORIDA
AURORA LOAN SERVICES, LLC, CASE NO.: SC14-1044
Petitioner, 1DCA No.: 1D12-6071
vs.
LEWIS B. HUNTER, JR.,
Respondent.
______/
RESPONDENT’S JURISDICTIONAL ANSWER BRIEF
______
ON REVIEW FROM THE DISTRICT COURT OF APPEALS, FIRST JUDICIAL DISTRICT, STATE OF FLORIDA ______
WENDY S. LOQUASTO Florida Bar No. 763195 FOX & LOQUASTO, P.A. 1201 Hays Street, Suite 100 Tallahassee, Florida 32301 Ph: (850) 425-1333 Fax: (850) 425-3020 Email: [email protected] & [email protected]
Attorney for Respondent Lewis B. Hunter, Jr. TABLE OF CONTENTS
TABLE OF AUTHORITIES...... ii
JURISDICTIONAL STATEMENT...... 1
INTRODUCTION AND RESPONSE TO AURORA’S STATEMENT OF THE CASE AND FACTS...... 1
SUMMARY OF ARGUMENT...... 3
ARGUMENT...... 3
Aurora failed to satisfy the foundational requirement for admission of evidence under the business records exception to the hearsay rule.. . . . 4
The First District’s opinion does not expressly and directly conflict with Cayea, Cooper, WAMCO XXVIII, Ltd., or Weisenberg...... 5
The First District did not misapply this court’s decision in Yisrael...... 8
CONCLUSION...... 10
CERTIFICATE OF SERVICE...... 10
CERTIFICATE OF TYPEFACE COMPLIANCE...... 11
i TABLE OF AUTHORITIES
CASES
Cayea v. CitiMortgage, Inc., __ So. 3d __, 39 Fla. L. Weekly D1105, 2014 WL 2197616 (Fla. 4th DCA May 28, 2014)...... 6-9
Cooper v. State, 45 So. 3d 490 (Fla. 4th DCA 2010)...... 6-9
Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988)...... 4
Hunter v. Aurora Loan Servicing, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014)...... 1, 3, 8
Twilegear v. State, 42 So. 3d 177 (Fla. 2010)...... 9
WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005)...... 6-9
Weisenberg v. Deutsche Bank National Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012)...... 6-9
Yisrael v. State, 993 So. 2d 952 (Fla. 2008)...... 3-5, 8-10
ii STATUTES
Section 90.803(6)(a), Florida Statutes (2012)...... 1, 8
RULES
Florida Rule of Appellate Procedure 9.210(a)(2)...... 11
OTHER
Charles W. Ehrhardt, Florida Evidence § 90.803(6), at 919 (2012 ed.)...... 9
Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, “The Operation & Jurisdiction of the Supreme Court of Florida,” 29 Nova Law Review 431, 515 (Spring 2005)...... 4
The Bluebook: A Uniform System of Citation 55 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010)...... 7
iii JURISDICTIONAL STATEMENT
Petitioner, Aurora Loan Servicing, LLC, seeks review of Hunter v. Aurora
Loan Servicing, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014) (on mot. for reh’g, clarif., certif., & reh’g en banc) (slip opinion is in Aurora’s appendix), by asserting the existence of express and direct conflict, required under Article V, Section
3(b)(3) of the Florida Constitution. Respondent, Lewis B. Hunter, Jr., will show there is no express and direct conflict, and, therefore, no discretion to exercise jurisdiction, thereby requiring denial or dismissal of Aurora’s petition for review.
INTRODUCTION AND RESPONSE TO AURORA’S STATEMENT OF THE CASE AND FACTS
The First District Court of Appeal held in Hunter that petitioner Aurora failed to establish it had standing to sue respondent Hunter for foreclosure as of the date it filed its complaint on April 3, 2007, because the evidence it offered to prove its standing when it commenced the lawsuit was not admissible under the business records exception to the hearsay rule, section 90.803(6)(a), Florida Statutes (2012).
Slip op. at 2 & 8. The evidence in question involved two computer-generated documents consisting of (1) an “Account Balance Report” dated “1/30/2007,” indicating that Hunter’s loan was sold to Lehman Brothers, of which Aurora is a subsidiary and loan servicer, and that payment in full was received on “12/20/2006,” and (2) a “consolidated notes log” printout dated “7/18/2007,” indicating that the
1 physical note and mortgage were sent via two-day UPS on 4/18/07. Slip op. at 3.
The First District decided that neither of the two documents was admissible because
Mr. Martin, the witness whom Aurora relied upon to lay the foundation for their admission under the business records exception, lacked the personal knowledge necessary to satisfy all the foundational elements for their admission. Slip op. at 6-
7. Because the only other evidence admitted at trial to prove Aurora’s standing to sue was a “Corporate Assignment of Mortgage” executed by MortgageIT on June
11, 2007, the First District concluded Aurora had no standing to sue as of April 3,
2007, the date it commenced the lawsuit. Slip op. at 3 & 8.
Mr. Martin, who was an employee of Rushmore Loan Management Service, the latest in a succession of loan servicers, was not a current or former employee of
MortgageIT, the original lender, and had never worked for it. Slip op. at 3, 4 & 6.
At the top of page 4 of petitioner Aurora’s brief, it states that “[t]he loan in question originated with MortgageIT, which sold the loan to Lehman Brothers in
December 2006[,]” and near the bottom of the same page, it states the “‘Account
Balance Report’ provided the date on which Lehman Brothers paid for Hunter’s loan. (App. 4-5.)” The sources for these statements are the objected-to documents and Mr. Martin’s testimony about them, which were determined inadmissible.
Petitioner Aurora further states at page 4: “At trial, Aurora presented a
2 witness who had been employed by Lehman Brothers. (App. 4.)” (Emphasis added.) The First District’s opinion states, however, that Martin “performed these services [due diligence and underwriting] for Lehman Brothers.” Slip op. at 4
(emphasis added). The First District’s choice of words is not without cause or distinction, as further explained infra.
SUMMARY OF ARGUMENT
The First District correctly determined that Mr. Martin failed to satisfy all the foundational elements necessary to admit the Account Balance Report and consolidated notes log into evidence under the business records exception and enable Martin to testify as to his interpretation of their contents. Because the First
District properly construed and applied Yisrael v. State, 993 So. 2d 952 (Fla. 2008), in reaching its decision, and its result is consistent with the law and facts, there is no express and direct conflict with any other court’s decisional law, and, therefore, no conflict jurisdiction for review of this case. Aurora’s petition for review should therefore be denied.
ARGUMENT
In Hunter, the First District properly concluded that Mr. Martin lacked personal knowledge of MortgageIT’s record-keeping procedures which was essential for establishing the required foundation for admission of the documents as
3 business records. Because the First District’s decision is based upon a straight- forward determination that Martin failed to establish the requisite foundation, a decision supported by record evidence, there is no express and direct conflict in decisions as the basis for this court to exercise its review jurisdiction. See Fla. Star v. B.J.F., 530 So. 2d 286, 288-89 (Fla. 1988) (explaining that while the court has subject-matter jurisdiction to hear any petition arising from a district court of appeal opinion which establishes a point of law, it has operated within the intent of the
Florida Constitution by refusing to exercise its discretion when the opinion establishes no point of law contrary to a decision of this court or another district court); Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters,
“The Operation & Jurisdiction of the Supreme Court of Florida,” 29 Nova L. Rev.
431, 515 (Spring 2005) (“If there is no conflict, then there is no discretion, and the petition for review must be denied or dismissed on that basis.”).
Aurora failed to satisfy the foundational requirement for admission of evidence under the business records exception to the hearsay rule
As explained in Yisrael v. State, 993 So. 2d 952 (Fla. 2008), a party may secure admission of documents under the business records exception to the hearsay rule by presenting testimony from the records custodian or other qualified witness showing that:
(1) the record was made at or near the time of the event; (2) was made
4 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.
Id. at 956.
In this case, it is undisputed that Mr. Martin was not the records custodian for
MortgageIT. Thus, petitioner Aurora’s only means of admitting the documents in question was to establish that he was an “other qualified witness,” that is, the equivalent of a records custodian with knowledge of MortgageIT’s record-keeping procedures, evidence essential for satisfying the foundational requirement. Aurora failed to do this, as shown by the following excerpt in the First District’s opinion:
Mr. Martin was neither a current nor former employee of MortgageIT, and otherwise lacked particular knowledge of MortgageIT’s record- keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, whether MortgageIT regularly made the records, or, indeed, whether the records belong to MortgageIT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing.
Slip op. at 6-7.
The First District’s opinion does not expressly and directly conflict with Cayea, Cooper, WAMCO XXVIII, Ltd., or Weisenberg
In support of its petition for review, petitioner Aurora contends in subsection
A of its brief that the First District’s decision expressly and directly conflicts with
5 multiple cases from other district courts involving substantially similar facts because
it applied the same rule of law, but reached a different conclusion. More
specifically, Aurora asserts that the First District misapplied the rule that it is
unnecessary to call the person who actually created the document and in so doing
it reached a result opposite to what occurred in Cayea v. CitiMortgage, Inc., __ So.
3d __, 39 Fla. L. Weekly D1105, 2014 WL 2197616 (Fla. 4th DCA May 28, 2014);
Cooper v. State, 45 So. 3d 490 (Fla. 4th DCA 2010); WAMCO XXVIII, Ltd. v.
Integrated Electronic Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005); and
Weisenberg v. Deutsche Bank National Trust Co., 89 So. 3d 1111 (Fla. 4th DCA
2012), based on substantially similar facts.
Respondent Hunter disagrees. The opinions in all of the above cases
demonstrate the critical distinguishing fact that the witness in question was either
a records custodian or other qualified witness who had personal knowledge of the
business’s record-keeping procedures based on his or her status as an employee of
that particular business or its servicing agent charged with maintaining payment data
for the business’s loans. Thus, the First District’s decision does not expressly and
directly conflict with any of those cases. And, in fact, the First District analogized
two of these cases, WAMCO XXVII, Ltd. and Weisenberg,1 to support its decision.
1The other two cases, Cayea and Cooper, were not cited in the district court proceedings.
6 See Slip op. at 7 (“Cf. Weisenberg . . . WAMCO XXVIII, Ltd.”).2
Although petitioner Aurora correctly points out that the witnesses in Cayea,
Cooper, WAMCO XXVIII, and Weisenberg did not say exactly who created the
documents, all of them, however, demonstrated that they had personal knowledge
of the companies’ record-keeping procedures, thereby enabling them to show that
the documents were made at or near the time of the event and that they were made
by a person with knowledge of the information.
In contrast, Mr. Martin was never an employee of MortgageIT or its servicing
agent, and he lacked personal knowledge of MortgageIT’s record-keeping
procedures to be considered a qualified witness. Indeed, as the First District stated:
He had no knowledge about who generated the notations [on the consolidated notes log], or how and where that individual obtained the information. Neither did he have such knowledge about the Account Balance Report. Further, he could not testify from personal knowledge that either document belonged to or was generated by MortgageIT.
Slip op. at 4-5.
Mr. Martin’s inability to testify that the records were made at or near the time
of the events, that the records were made by a person with knowledge, or that they
were even MortgageIT’s documents justifies the First District’s decision that
2The signal “cf.” means the “[c]ited authority supports a proposition different from the main proposition but sufficiently analogous to lend support.” The Bluebook: A Uniform System of Citation 55 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).
7 Martin’s testimony failed to satisfy the foundational requirement. This critical fact distinguishes Hunter from Cayea, Cooper, WAMCO XXVIII, and Weisenberg.
The First District did not misapply this court’s decision in Yisrael
As an alternative basis for jurisdiction, petitioner Aurora argues in subsection
B of its brief that the First District misapplied this court’s decision in Yisrael v.
State, 993 So. 2d 952 (Fla. 2008), by construing it too narrowly to mean only current or former employees of a business can be qualified witnesses to lay the foundation for admission of business records under section 90.803(6)(a). Aurora argues that no where in Yisrael does it say the authenticating witness must be a current or former employee, and that the law provides any qualified witness may lay the foundation. Aurora’s argument should be rejected for the following reasons.
First, the First District’s opinion does not announce any rule as to who can and cannot be a “custodian or other qualified witness” for admission of business records under section 90.803(6)(a). Rather it simply states that “Mr. Martin’s testimony failed to establish the necessary foundation for admitting the Account
Balance Report and the consolidated notes log into evidence under the business records exception.” Slip op. at 6.
Significantly, petitioner Aurora has cited no authority that interprets section
90.803(6)(a) so broadly as to permit any person, particularly someone who was
8 never employed by the business whose records are at issue, to be considered the equivalent of that business’s records custodian.
Indeed, Twilegear v. State, 42 So. 3d 177, 199 (Fla. 2010), which Aurora cited in support of its argument, stands for just the opposite. In Twilegear, this court concluded that store receipts could not be admitted as a business record through the testimony of the deputy sheriff who recovered them during the criminal investigation because he was not qualified to and did not show that the receipts were records kept in the regular course of those businesses’ activities.
Significantly, Yisrael itself refers to a “records custodian” and it involves an attempt to introduce data from the Department of Corrections through a DOC employee, and Cayea, Cooper, WAMCO XXVIII, and Weisenberg all involve employees or the business’s designated servicing agent.
Aurora’s argument is also contrary to the plain language of Florida’s business records exception, which requires the records custodian or his or her equivalent qualified witness to authenticate business records before they are admitted into evidence. See Charles W. Ehrhardt, Florida Evidence § 90.803(6), at 919 (2012 ed.)
(“Normally, a record custodian of one business can not lay a foundation for business records of a second business, even in possession of the first business, because the witness would not have personal knowledge of how the second business kept its
9 records and could not testify to the foundation requirements.”). Thus, Aurora has failed to show that the First District’s opinion is a misapplication of Yisrael or any other case so as to afford this court discretion to review the case under its conflict jurisdiction, and its petition for review should be denied.
CONCLUSION
For the foregoing reasons, this court should deny petitioner Aurora Loan
Servicing’s petition for review and enter an order granting respondent Hunter’s motion for attorney’s fees.
Respectfully submitted,
/s/ Wendy S. Loquasto Wendy S. Loquasto Florida Bar No. 0763195 FOX & LOQUASTO, P.A. 1201 Hays Street, Suite 100 Tallahassee, FL 32301 Ph: (850) 425-1333 Fax: (850) 425-3020 Email: [email protected] & [email protected]
Attorneys for Respondent Lewis B. Hunter, Jr.
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished by electronic mail to Reid
Manley, [email protected], John R. Chiles, [email protected], Christine Irwin
10 Parrish, [email protected], Gennifer L. Bridges, [email protected], Attorneys for Appellee/Plaintiff, Burr & Forman LLP, 200 S. Orange Avenue, Suite 800,
Orlando, Florida 32801; Law Offices of Daniel C. Consuegra, P.L., and Christopher
Hixson, Esq., Attorneys for Appellee/Plaintiff Aurora Loan Services, LLC, of 9204
King Palm Drive, Tampa, FL 33619, at [email protected] and
[email protected].; and by U.S. mail to Appellee/Defendant
Settler’s Creek Homeowners Association, Inc., c/o Cheri Lewis Garback, Property
Manager, Lewis Property Management, LLC, 2910 Kerry Forest Parkway, Suite D-4
#294, Tallahassee, FL 32309, on this 1st day of July 2014.
/s/ Wendy S. Loquasto Attorney
CERTIFICATE OF TYPEFACE COMPLIANCE
I further certify that this brief uses Times New Roman 14-point font in compliance with Florida Rule of Appellate Procedure 9.210(a)(2).
/s/ Wendy S. Loquasto Attorney
11