FLORIDA DCA REVERSES JUDGMENT FOR BORROWER & CLARIFIES EVIDENTIARY RULES

Florida’s Fifth DCA just reversed a judgment entered in a foreclosure case against the mortgagee and in favor of the borrower (“Bell”). U.S. Bank National Association as Trustee for Ramp 2006EFC2 v. Bell, Case No. 5D21-2528, 2023 WL 446866 (Fla. 5th DCA 2023). In Bell, the lower court found that US Bank failed to prove it had standing to foreclose when it filed the foreclosure action.i

On appeal, the Fifth DCA disagreed with the trial court’s evidentiary ruling which precluded admission of a Pooling and Servicing Agreement (“PSA”) and attached Mortgage Loan Schedule which US Bank intended to rely upon to prove its standing. The trial court sustained Bell’s hearsay objection when US Bank introduced the PSA into evidence. The trial court made a finding that the PSA was inadmissible hearsay and that US Bank failed to lay the proper predicate for admissibility of the PSA under the business records exception.ii

In reversing that evidentiary ruling, the DCA compared the PSA to a will, contract, assignment, mortgage modification, or a promissory note; each of which had been previously determined by other courts not to be hearsay because those documents had “independent legal significance” to which the law attached “duties and liability.”iii The DCA elaborated that “words of a contract are not hearsay because they characterize verbal acts and thus have independent legal significance.” Their evidentiary significance stems from “their binding effect and not because of the truth of what they say.”

The DCA reversed the judgment for Bell; however, the court did not enter a foreclosure judgment.iv Instead, the court remanded the matter “for further proceedings” which, ostensibly, would include consideration of the PSA to demonstrate US Bank’s standing. Importantly, both the DCA and the trial court noted that US Bank could demonstrate its standing “through a PSA where the note is part of the trust established by the PSA prior to suit being filed.”v This decision is consistent with well-established common law regarding standing and should simplify introduction of PSAs in foreclosure trials, at least from an evidentiary standpoint.

i Bell, at *1. All future references or quotations are to this case citation unless indicated otherwise.

ii The business records exception to the hearsay rule is codified at § 90.803(6), Florida Statutes. Bell, at *2.

iii Bell, at 2 (citations omitted). All future references or quotations are to this case citation unless indicated otherwise.

iv Bell, at *3.

v Bell, at *1 (additional citations omitted).