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FL 2nd DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

FL 2nd DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

I don’t know about you, but, I’m seeing a trend  and it is not good for the consumer.  First the 4th DCA, then the 5th DCA and now the 2nd DCA rule Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer.    I wonder do any of these Judges know that the Creditor law firms have direct access to the payment  history and can go in and manipulate charges and how  the money is  applied?   These banks changes servicers and law firms constantly- do you have any idea  how many  people have touched your loan history?   I don’t.

The latest case is AS Lily LLC v. Harold Morgan   it was appealed from Judge Campbell in Pinellas County by The Solomon Law Firm on behalf of AS Lily.   The 2nd DCA found that  incorporation or adoption of prior servicer’s records was  allowed if the servicer verified them before using them as his own. WAMCO XXVII, Ltd. V. Integrated Electronic Environments, Inc., 902 So. 2d 230 (Fla. 2d DCA 2005).

Judge Campbell had  relied on Glarum v. LaSalle Bank Natl. Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011).

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/May/May%2008,%202015/2D14-863.pdf

 

FL 5th DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

FL 5th DCA Holds Prior Servicer’s Records Admissible On Testimony By Subsequent Servicer

Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015)

US Bank’s Loan Payment History was used to establish the homeowner’s default and the amount of the alleged debt as is the case in all foreclosures.  Often the histories contain information transmitted by one or more prior loan servicers, with only the current servicer present at trial.   The question in this case was are these prior histories  inadmissible hearsay within hearsay.

For a current servicer to establish the business records exception for information transmitted by a prior servicer under FL § 90.803(6), the testifying witness must not only testify that the current servicer verified the information it received, but must also have knowledge of the prior servicers’ record keeping procedures. See Kimberly Le v. U.S. Bank, 5D14-578 (May 22, 2015) (Fla 5th DCA 2015).

In Kimberly Le, this Court held that a payment history was admissible where the bank’s witness testified that her company’s loan boarding process (i) verifies the accuracy of the information it received from the prior servicer and (ii) confirms that the prior servicer’s entries conformed to industry standards. Id. at p.3. Unless the witness can testify to both elements, the information transmitted by the prior servicer does not satisfy the business records exception to hearsay.

 

Compelling Borrowers To Produce Personal Financial Information To Facilitate Foreclosure Mediation No Longer Permitted

Compelling Borrowers To Produce Personal Financial Information To Facilitate Foreclosure Mediation No Longer Permitted

Morejon v. F&M Real Estate, Inc., et. al., 40 Fla. L. Weekly D823a (Fla. 2n DCA April 8, 2015). Unless a borrower voluntarily agrees to produce financial documents in advance of a mediation to allow a lender to evaluate possible mortgage options or options to foreclosure, court-ordered foreclosure mediations may become futile.  The 13th Judicial Circuit’s interlocutory order requiring borrowers to produce private financial records for court-ordered mediation, based upon their Uniform Order of Referral to Foreclosure Mediation which requires that the borrower provide a completed financial disclosure form and any additional documentation requested by the plaintiff at least 30 days prior to the scheduled mediation was quashed by the 2nd DCA.