Glarum v. LaSalle Bank National Ass'n

Citations: 83 So. 3d 780; 2011 WL 5573941; 2011 Fla. App. LEXIS 18175Docket: No. 4D10-1372

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

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LaSalle's motions for rehearing and clarification, as well as rehearing en banc, are denied, with the court noting LaSalle's failure to contest the reversal of summary judgment. The court grants clarification and substitutes a revised opinion. The appeal addresses two main issues: the propriety of the trial court's summary judgment of foreclosure in favor of LaSalle Bank and the sanctions imposed on appellants' counsel for filing frivolous pleadings under section 57.105 of the Florida Statutes. The court reverses the summary judgment in part, ruling that LaSalle's evidence was insufficient to prove the amount owed under the note and mortgage. The court also overturns the sanctions against appellants' counsel, deeming them improper.

While the appellants admitted to being in default due to non-payment, they disputed the claimed amount of indebtedness. LaSalle's evidence included an affidavit from Ralph Orsini, a loan servicer specialist, asserting an outstanding amount of over $840,000. However, Orsini's deposition revealed that he derived a lower figure of $340,000 from a computer system without knowledge of the data entry process or its accuracy. The court found that Orsini’s affidavit was inadmissible hearsay, failing to meet the criteria for business records under section 90.803(6)(a) of the Florida Statutes. Orsini could not confirm how the data entries were made or whether they adhered to standard business practices, undermining the validity of LaSalle's summary judgment motion.

Orsini lacked knowledge of the data produced by his company and was unqualified to authenticate it, rendering his statements inadmissible under section 90.803(6)(a), and the affidavit of indebtedness was deemed inadmissible hearsay. LaSalle failed to present competent evidence for the claimed damages of $422,677.85, leaving the judgment amount unresolved. Consequently, the judgment in favor of LaSalle was reversed and remanded for further proceedings. The trial court had also imposed sanctions on appellants’ counsel for submitting a “form affidavit” by expert Rita Lord, who did not review the pertinent documents. The court expressed concern over the repeated use of the same affidavit in multiple cases without proper examination of the documents. LaSalle was awarded reasonable attorney’s fees for filing a motion to strike Lord’s affidavit; however, the trial court did not find the appellants' claims frivolous, nor did it establish that the affidavit caused unreasonable delay, making the attorney's fee award under section 57.105 inappropriate. Additionally, while the court possesses inherent authority to sanction for bad faith conduct, it failed to make the necessary findings of bad faith, leading to the reversal of the sanctions order. Upon remand, any reconsideration must adhere to the standards established in Moakley v. Smallwood. The ruling on foreclosure and sanctions against counsel was reversed and remanded. LaSalle's motion acknowledged the court's reversal of summary judgment but noted that the law does not require the affiant to be the records custodian or identify who entered the data. The case outcome might have differed with proper foundational testimony or additional affidavits from qualified individuals to support the business records hearsay exception.