Saturday, September 10, 2011

Foreclosure Judgment Reversed Due To Challenge To Amount Owed

Update: In Glarum v. LaSalle Bank National Association (4D10-1372), the Fourth District withdrew the opinion discussed below and issued a new opinion on rehearing. The new opinion is discussed HERE.

In Glarum v. LaSalle Bank National Association (4D10-1372), the court reversed a foreclosure judgment.   The court explained the facts as follows:
Appellants admitted in their answer that they had not made payments according to the terms of the note, and as such, they were in default. Appellants, however, denied LaSalle’s allegations regarding the amount of the default. To establish the amount of appellants’ indebtedness for summary judgment, LaSalle filed the affidavit of Ralph Orsini, a “specialist” at the loan servicer, Home Loan Services, Inc. Orsini claimed in the affidavit that appellants  were in default of their payment obligations and owed in excess of $340,000 on the note. In opposition to the motion for summary judgment, appellants filed Orsini’s deposition, wherein Orsini explained  that he derived the $340,000 figure from his company’s computer system. However, Orsini 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, Orsini relied in part on data retrieved from Litton Loan Servicing, a prior servicer of appellants’ loan.  
The court continued that "We find that Orsini’s affidavit  constituted inadmissible  hearsay  and, as  such, could not support LaSalle’s motion for summary judgment..."
Orsini did not know who, how, or when the data entries were made into Home Loan Services’s computer system. He could not state if the records were made in the regular course of business. He relied on date supplied by Litton Loan Servicing, with whose procedures he was even less familiar. Orsini could state that  the  data  in the affidavit was accurate only insofar as it replicated the numbers derived from the company’s computer system. Despite Orsini’s intimate knowledge of how his company’s computer system works, he had no knowledge of how that data was produced, and he was not competent to authenticate that data. Accordingly, Orsini’s statements could not be admitted under  section 90.803(6)(a),  and the affidavit of indebtedness constituted inadmissible hearsay.
On a separate issue in this appeal, the court stated:
The trial court also entered sanctions against appellants’ counsel for filing a “form  affidavit” from  an expert, Rita  Lord, who opined on the ability of lay persons to distinguish between original and high-quality copies  of promissory notes. Lord did not represent in the affidavit that she reviewed the  papers  at  issue in this case.  Nevertheless, the trial court was distressed by appellants’ counsel’s habit  of  filing  “the  same affidavit in ten different cases, when [Lord] hasn’t seen the documents in this case.” The court awarded LaSalle its reasonable attorney’s fees for having to file a motion to strike Lord’s affidavit.
The trial court did not make any specific findings of bad faith on the record, and the sanctions order must be reversed without prejudice....“Upon remand, should the  court  be  asked to  reconsider  the  issue,  any  future  hearing and order must comply with the requirements of Moakley.” [citation omitted].
The opinion was discussed in THIS Daily Business Review article titled "4th DCA bars affidavit over failure to verify" [subscription required].


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