Wednesday, November 10, 2010

Denial Of Motion To Set Aside Foreclosure Judgment Based Upon Knowledge Of Affiant Affirmed

In Freemon v. Deutsche Bank Trust Co. (4D09-4275), the Fourth District affirmed the trial court's denial of a motion to set aside a final judgment of foreclosure.  Deutsche Bank filed a foreclosure lawsuit against the appellant.  The appellant did not file any responsive pleadings and a default was entered.  Deutsche Bank filed a motion for summary judgment which was granted.  Prior to the sale date, the appellant appeared and filed a motion to set aside the judgment.  The trial court cancelled the sale and six months later, after the parties had not reached an agreement, the trial court rescheduled the foreclosure sale.  

On appeal, the appellant "claimed that the affidavit of indebtedness attesting to the amounts due on the mortgage and note was not made on the personal knowledge of the affiant."  After providing the standard of review, the court stated that in order to be entitled to an evidentiary hearing on a motion to set aside a judgment "[t]he matter alleged must affect the outcome of the case and not merely be 'de minimis... Thus, to obtain a hearing on a rule 1.540(b)(3) motion, the law requires a movant “to demonstrate a prima facie case of fraud, not just nibble at the edges of the concept.” Hembd v. Dauria, 859 So. 2d 1238, 1240 (Fla. 4th DCA 2003).  As to the merits, the court stated:
Freemon’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside a default judgment. Freemon nowhere contends that she did not default on her mortgage, nor does she allege that the amounts due and owing, set forth in the affidavit and incorporated in the final judgment, are incorrect.  Indeed, Freemon has not specifically alleged any fraud in connection with Ms. Bailey’s statements in this affidavit regarding the amount due. Freemon merely alleges that Bailey claimed personal knowledge of the matters in the affidavit, even though Bailey admitted in her deposition in different case that she did not know who inputted information into the computer regarding the loan in question in that case.
Emphasis from opinion.  The court continued that:
We disagree with Freemon’s characterization of Bailey’s affidavit and of Bailey’s testimony. In her affidavit, she attested that she was familiar with the books, records, and accounts kept by Litton, and those books, records, and accounts are kept in the regular course of business of Litton. Those records “are made at or near the time by, and from information transmitted by, persons with personal knowledge of the facts, such as your Affiant.” She did not attest that she personally made all the entries for any particular mortgage. Specifically, she attested that she had personal knowledge of the amounts and charges due. In her deposition in another case, she testified that she was the records custodian for Litton Loan. In signing the affidavits of indebtedness, she acquires her knowledge of the amounts due by inputting the mortgagor’s name into the computer which contains all of the mortgage information. The computer then provides her with the amount of the outstanding mortgage, interest, and charges. Bailey’s affidavit in this case is not inconsistent with her testimony in the other case. Freemon has not shown any fraud, nor has she shown that the information about this loan, i.e., the amounts due and the default, are in any way incorrect.


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