Glarum v. LASALLE BANK NAT. ASS'N

Citations: 83 So. 3d 780; 2011 WL 5573941Docket: 4D10-1372

Court: District Court of Appeal of Florida; November 16, 2011; Florida; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

LaSalle Bank National Association, as Trustee, sought rehearing and clarification after a court decision involving Gary and Anita Glarum. The court denied the rehearing motions but granted clarification, replacing its previous opinion. The appeal addressed two main issues: the trial court's granting of summary judgment for foreclosure in favor of LaSalle and the imposition of sanctions on the Glarums' counsel for filing frivolous pleadings under Florida Statutes section 57.105. The court reversed the summary judgment, finding LaSalle's evidence insufficient to prove the amount owed under the note and mortgage. Additionally, the sanctions against the Glarums' counsel were deemed improper. However, the court upheld that the Glarums were in default for non-payment, as they admitted in their answer. LaSalle's evidence for the amount due came from an affidavit by Ralph Orsini, a loan servicer, who cited a figure of over $340,000 but could not verify the accuracy of the underlying data. The court emphasized that summary judgment requires demonstrable evidence showing no genuine issues of material fact, as per Florida's procedural rules.

Orsini's affidavit was ruled inadmissible as hearsay and could not support LaSalle's summary judgment motion due to failure to meet the criteria for business records under section 90.803(6)(a), Florida Statutes. Orsini lacked knowledge regarding the creation and maintenance of the entries in Home Loan Services's computer system and could not verify if they were made in the regular course of business. His reliance on data from Litton Loan Servicing further undermined his competence to authenticate the records. Consequently, LaSalle failed to provide competent evidence for the claimed damages of $422,677.85, leading to the reversal of the judgment in its favor and remand for further proceedings.

Additionally, the trial court sanctioned the appellants' counsel for submitting an affidavit from expert Rita Lord that lacked specific review of the relevant documents. Although LaSalle sought sanctions under section 57.105 for alleged frivolous claims, the trial court did not find the claims frivolous or that Lord's affidavit was filed to cause delay. Therefore, this statute could not justify the attorney's fees awarded to LaSalle. The trial court also misapplied its inherent authority to impose sanctions, as it did not make express findings of bad faith conduct as required by Moakley v. Smallwood. The sanctions order was reversed without prejudice, with a directive that any future hearings must adhere to Moakley’s requirements.

The judgment of foreclosure and the sanctions against the appellants' counsel are reversed, and the case is remanded for further proceedings. The judges, Ciklin, Levine, and Thornton concur in this decision. LaSalle’s motion acknowledges that it does not contest the court's reversal of the summary judgment. It is established that an affiant using computerized bank records is not required to be the records custodian or identify who entered the data. Furthermore, there is no absolute prohibition on admitting computerized business records from a prior loan servicer. The outcome of this case may have differed if the affiant's testimony had shown familiarity with the criteria outlined in section 90.803(6)(a) and the referenced case, Yisrael. LaSalle could have enhanced Orsini's affidavit with additional affidavits from qualified individuals to confirm that the computer records met the business records hearsay exception, as permitted by Florida Rule of Civil Procedure 1.510(e). The court allows for the supplementation of affidavits.