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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.

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