Current Loan Servicer, With No Knowledge Of Prior Servicer’s Record Creation And Maintenance Policy, Cannot Competently Testify To The Amount In Default Where The Amount Is Derived In Part From The Prior Servicer’s Records

The borrowers in Glarum v. LaSalle Bank Nat. Ass’n, 4D10-1372 (Fla. Dist. Ct. App. Sept. 7, 2011) admitted in their answer to a foreclosure action that they had not made payments according to the terms of the note. However, they denied the mortgagee’s allegations regarding the amount of the default. To prove the amount of the indebtedness for summary judgment, the mortgagee filed an affidavit of a loan specialist employed by the mortgagee’s loan servicer. The affiant averred that the borrowers were in default of their payment obligations and owed in excess of $3000 on the note. In opposition, the borrowers filed the affiant’s deposition, wherein he explained that he derived the $3000 figure from his company’s computer system. However, he did not know who entered the data into the computer, and he could not verify that the entries were correct at the time they were made. To calculate appellants’ payment history, the affiant also relied in part on data retrieved from a prior servicer of the loan. The appellant court reversed the entry of summary judgment finding that the affidavit constituted inadmissible hearsay. The testimony was not admissible under the business records exception because the affiant did not know who, how, or when the data entries were made into the prior servicer’s computer system. He could not state if the records were made in the regular course of business. He also had no knowledge of the prior servicer’s procedures and could only state that the data in the affidavit was accurate insofar as it replicated the numbers derived from the company’s computer system. Despite his intimate knowledge of how his company’s computer system worked, he had no knowledge of how the prior servicer’s data was produced, and he was not competent to authenticate that data. Because the mortgagee presented no competent evidence to show damages, the case was remanded where, presumably, the mortgagee will have to obtain evidence from the prior servicer to prove the amount of the judgment.

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