Florida appellate court validates a servicer’s affidavit by rejecting mortgagor’s attempt to discredit it by allegedly inconsistent testimony given in another case

A timely decision out of Florida throws some welcome light on the affidavit controversy swirling around the default servicing world. In Freemon v. Deutsche Bank Trust Co. Americas as Trustee, No. 4D09-4275 (4th Dist. Fl. Nov. 2010), the mortgagee moved for summary judgment in a foreclosure action after the mortgagor failed to appear. It attached an affidavit executed by an assistant secretary of the mortgagor’s servicer to the motion. The affiant attested that she was familiar with the books and accounts of the servicer and had personal knowledge of the amount due on the loan. The affidavit also set forth the unpaid balance, interest and other charges. The trial court entered summary judgment setting the amount due and owed using the amounts in the affidavit. The property was subsequently sold to the mortgagee but prior to possession the mortgagor moved for relief from the judgment asserting that the affidavit in support of the motion for summary judgment was fraudulent. The motion was based on a deposition that that the affiant gave in a different foreclosure case. The mortgagor alleged that the affiant admitted in that case that she routinely signed affidavits without personal knowledge of the facts stated in the affidavits. The trial court denied the motion as legally insufficient and the mortgagor appealed. The Appellate Court affirmed. It noted that the mortgagor did not contend that she was not in default on the mortgage or allege that the amounts shown in the affidavit and judgment were incorrect. Merely alleging that the affiant did not have personal knowledge was not enough even where the affiant admitted in a different case that she did not know who provided the loan information into the computer. Both the affidavit and deposition testimony showed that the affiant was familiar with the servicer’s books and records, the records were kept in the ordinary course of business and were made at or near the time and by information transmitted by persons with personal knowledge of the facts. In neither the affidavit nor the deposition did the affiant attest that she personally made all the entries for any particular mortgage yet the court still found she has sufficient personal knowledge by reviewing the business records. Thus, the mortgagor was not able to show fraud or that the amounts stated in the affidavit or judgment was incorrect.

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