DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NATACHA PEUGUERO and ANGELO PEUGUERO,

Appellants,

v.

BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME 

LOANS SERVICING, LP, FKA COUNTRYWIDE HOME LOANS 

SERVICING, LP,

Appellee.

No. 4D13-3210

[July 15, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Robin L. Rosenberg, Judge; L.T. Case No. 

502009CA005550XX.

Thomas Erskine Ice and Amanda L. Lundergan of Ice Appellate, Royal 

Palm Beach, and Thomas D. Hall of The Mills Firm, P.A., Tallahassee, for 

appellants.

J. Randolph Liebler, Tricia J. Duthiers, Adam M. Topel, and Kristen 

Tajak of Liebler Gonzalez & Portuondo, Miami, and Lisa J. Geiger and Matt 

Mitchell of Burr & Forman, LLP, Orlando, for appellee.

FORST, J.

Appellants Natacha and Angelo Peuguero appeal the entry of a final 

judgment of foreclosure in favor of Appellee Bank of America (“the Bank”). 

While we disagree with Appellants’ argument that the foreclosing bank 

failed to prove standing, we agree that the Bank failed to provide sufficient 

evidence to support the judgment amount. Therefore, we affirm the trial 

court’s entry of judgment, but we reverse and remand for a determination 

of the correct amounts owed.

Background

Appellants executed a note and mortgage in favor of Diversified 

Mortgage in August 2007. By 2009, Appellants were no longer able to 

make payments on the loan. Countrywide Bank filed a complaint to 
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foreclose on the loan in August 2009, alleging that it was the owner and 

holder of the note. The complaint included a count to reestablish a lost 

note. Attached to the complaint was an unendorsed copy of the note. 

In April 2011, Countrywide moved to amend the name of the plaintiff 

in the action to the Bank, as Countrywide and the Bank had merged. An 

amended complaint was filed by the Bank in December 2011. A copy of 

the note, now including an allonge, was attached to the Amended 

Complaint. The allonge contained endorsements from Diversified 

Mortgage (the original lender) to Countrywide FSB, from Countrywide FSB 

to Countrywide Home Loans, then back to Countrywide FSB, and finally a 

blank endorsement. None of the endorsements were dated.

At trial, the Bank called one of its employees to testify. This witness 

testified that she was familiar with the record-keeping practices of both 

the Bank and Countrywide and that the payment history for this loan was 

kept in the ordinary course of business. On the strength of this testimony, 

the trial court admitted the payment history into evidence.

The witness was also asked to confirm the amount owed by Appellants

to the Bank. Relying on a proposed judgment drafted by the Bank, but

not entered into evidence, the witness testified to both the principal and 

interest owed on the loan. 

The trial court entered a final judgment of foreclosure in favor of the 

Bank in the amount of $697,807.36. Appellants now appeal the judgment 

against them, arguing the Bank’s witness was not qualified to testify, that 

the original plaintiff in this action, Countrywide, did not have standing 

when it filed the complaint, and that the trial court erred by allowing the 

witness to testify from the proposed judgment. While we hold that the 

Bank adequately proved Countrywide had standing to file the initial 

complaint, we agree with Appellants’ challenge to the calculation of the 

interest due as part of the judgment award.

Admissibility of Payment History

Appellants initially argue that testimony by the Bank’s witness 

concerning Appellants’ loan payment history should have been deemed 

inadmissible hearsay and not as an exception to the hearsay rule. The 

business records exception, found in section 90.803(6), Florida Statutes 

(2013), allows a party to introduce evidence that would normally be 

inadmissible hearsay if:

(1) the record was made at or near the time of the event; (2) 
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was made by or from information transmitted by a person with 

knowledge; (3) was kept in the ordinary course of a regularly 

conducted business activity; and (4) that it was a regular 

practice of that business to make such a record.

Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008). Here, the witness 

provided enough testimony to meet these requirements.

We have previously addressed a similar situation in Cayea v. 

CitiMortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014). There, a 

foreclosing bank introduced a printout of a loan payment history as a 

business record. Id. at 1217. The bank called a witness, who testified 

that other bank employees routinely input payments into the bank’s 

computer system and that the record presented at trial was simply a 

printout of the bank’s records that was printed specifically for trial. Id. at 

1216. We affirmed the trial court’s admission of this document, holding 

that the records were admissible, even if the printouts were not kept in the 

ordinary course of business, “so long as a qualified witness testifies as to 

the manner of preparation, reliability, and trustworthiness.” Id. at 1217. 

Relying on Weisenberg v. Deutsche Bank National Trust Co., 89 So. 3d 

1111, 1113 (Fla. 4th DCA 2012), we held that the witness had sufficient 

knowledge where he “demonstrated his familiarity with [the bank]’s recordkeeping system and the process for uploading payment information.” 

Cayea, 38 So. 3d at 1218.

Likewise, the witness in this case testified that even though she was 

not responsible for maintaining or updating the records, she was familiar 

with the Bank’s procedures for inputting payment information into the 

proper computer systems. Although she was unable to give the precise 

name for each group in the Bank’s structural hierarchy that was 

responsible for entering various events into the computerized records, she 

knew that events/transactions were processed at the time of their 

occurrence and placed into the Bank’s systems, as per the standard 

business practice of the Bank. Furthermore, the trial court did not find 

any indication that the witness’s testimony was unreliable. Therefore, 

based on our precedent in Cayea, we find that the witness was qualified 

to lay the foundation for the admission of the business records.

“The law is . . . clear there is no per se rule precluding the admission of 

computerized business records acquired from a prior loan servicer.” 

Glarum v. LaSalle Bank Nat’l Ass’n, 83 So. 3d 780, 782 n.2 (Fla. 4th DCA 

2011). The records from a prior servicer must, of course, have some indicia 

of accuracy, either through personal knowledge of a witness, as discussed

in Holt v. Calchas, LLC, 155 So. 3d 499, 504 (Fla. 4th DCA 2015), or a 
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showing of some contractual relationship between the current and prior 

servicers. Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1072 (Fla. 4th DCA 

2015). For example, in WAMCO XXVIII, Ltd. v. Integrated Electronic 

Environments, Inc., 903 So. 2d 230, 232-33 (Fla. 2d DCA 2005), the court 

held that a document detailing amounts owed was admissible as a 

business record even where the witness’s testimony was based on 

information from a previous holder of the note. The witness testified that 

he knew how the prior holder’s accounting systems worked and that “the 

procedures were ‘bank-acceptable accounting systems.’” Id. at 233. 

Further, the witness testified that the current holder verified the records 

for accuracy when it obtained them. Id. In the instant case, the witness 

testified that she was familiar with the record-keeping practices of the prior 

holder of the note, Countrywide. She testified that, based on her training, 

Countrywide and the Bank had identical procedures and record-keeping 

systems in place. 

A trial court’s ruling on the admissibility of evidence under the business 

records hearsay exception is reviewed for an abuse of discretion. See 

Cayea, 138 So. 3d at 1216; LEA Indus., Inc. v. Raelyn Int’l Inc., 363 So. 2d 

49, 52 (Fla. 3d DCA 1978) (“[I]t lies within the trial court’s discretion to 

determine whether admission of . . . business records is justified.”). In the 

instant case, based on the weight afforded by the trial court to the 

testimony of the Bank’s witness, the admission of the business records of 

the prior note holder to establish the loan payment history was not an 

abuse of discretion.

Standing

“A crucial element in any mortgage foreclosure proceeding is that the 

party seeking foreclosure must demonstrate that it has standing to 

foreclose. Standing may be established by either an assignment or an 

equitable transfer of the mortgage prior to the filing of the complaint.” 

McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th 

DCA 2012) (internal citations omitted). “[A] party’s standing is determined 

at the time the lawsuit was filed.” Id.

In this case, the original plaintiff, Countrywide, had standing at the 

time it filed suit. At trial, the Bank offered the note, mortgage, allonge, 

and notice-of-default letter into evidence. Although the witness was 

unable to specify exactly when Countrywide first held the note, the loan 

payment history reveals that Countrywide began receiving payments from 

Appellants shortly after the closing date for the loan. Additionally, the loan 

payment history indicates that Countrywide paid taxes and other fees 

associated with the mortgaged property in the time prior to the filing of the 
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original complaint. This is a noteworthy factor in determining standing, 

as financial institutions are not known to incur expenses on behalf of 

properties for which they do not hold an interest. 

The undated allonge, in combination with the testimony of the Bank’s 

witness, indicates that Countrywide, in various corporate forms, was a 

holder of the note prior to the endorsement in blank. Where holder status 

is based on an endorsement in blank, the plaintiff must prove that the 

endorsement was effectuated before the lawsuit was filed. Feltus v. U.S. 

Bank Nat’l Ass’n, 80 So. 3d 375, 377 n.2 (Fla. 2d DCA 2012). A plaintiff 

need not prove the exact date of a necessary endorsement to show 

standing at the inception of the foreclosure action—testimony that the 

endorsement was effectuated before the filing of the complaint will suffice. 

See McLean, 79 So. 3d at 173 (concluding an affidavit of ownership is 

sufficient to prove standing). 

Here, the witness responded in the affirmative to a cross-examination 

inquiry as to whether the endorsements on the allonge were “definitely put 

on before the filing of the complaint.” She testified that Countrywide 

owned and held the note when the complaint was filed and that its policy 

and procedure is to have notes endorsed before foreclosure complaints are 

filed. “Evidence of the routine practice of an organization, whether

corroborated or not and regardless of the presence of eyewitnesses, is 

admissible to prove that the conduct of the organization on a particular 

occasion was in conformity with the routine practice.” § 90.406, Fla. Stat.

(2013); People’s Trust Ins. Co. v. Roddy, 134 So. 3d 1071, 1073 (Fla. 4th 

DCA 2013); Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594, 

599 (Fla. 1st DCA 2007) (“The existence of a routine practice creates an 

inference that an agent or employee of the organization acted according to 

the practice. In the absence of contrary evidence, jurors may properly 

assume that an employee has adhered to established procedures.”

(citation omitted)).

The Bank, successor in interest to Countrywide, furnished sufficient 

admissible testimony and evidence from which the trier of fact could 

conclude that all endorsements on the allonge were made before the filing 

of the complaint and that Countrywide was a holder with standing to 

foreclose at the time of filing the original complaint.

Calculation of Interest Owed

Despite our agreement with the trial court that the Bank adequately 

proved standing, we are compelled to partially reverse the trial court’s 

ruling on the issue of damages. At trial, the only evidence of the amount
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of interest owed by Appellants came from the witness, who merely testified 

that the amount written on a proposed final judgment was correct. 

However, this proposed judgment was never admitted into evidence. While 

the loan payment history, which was submitted into evidence, reflects the 

amount of principal owed on the loan, there are no entries that indicate 

the accrual of the almost $200,000 in interest the trial court granted to 

the Bank. 

“A document that was identified but never admitted into evidence as an 

exhibit is not competent evidence to support a judgment.” Wolkoff v. Am. 

Home Mortg. Servicing, Inc., 153 So. 3d 280, 281-82 (Fla. 2d DCA 2014). 

In Wolkoff, the Second District reversed a judgment of foreclosure where 

the plaintiff’s witness “merely confirmed that the totals given to him on a 

proposed final judgment ‘seemed accurate’” and never actually stated the 

total amount owed. Id. at 281. Similarly, in Sas v. Federal National 

Mortgage Ass’n, 112 So. 3d 778, 779 (Fla. 2d DCA 2013), the plaintiff 

presented witness testimony of the specific amount owed, but failed to 

produce the business records upon which the witness relied. 

While the court in Wolkoff remanded that case to the trial court with 

instructions to enter an involuntary dismissal, 153 So. 3d at 283, the Sas

court remanded the case for further proceedings to establish the amounts 

owed. 112 So. 3d at 780. We addressed the Wolkoff/Sas dichotomy in 

Beauchamp v. Bank of New York, 150 So. 3d 827 (Fla. 4th DCA 2014). In 

choosing remand rather than reversal, we noted 

[t]he facts of the instant case are more similar to Sas than Wolkoff

because here, like the plaintiff in Sas, the Bank established the 

amount of indebtedness through witness testimony, even though 

that testimony concededly was inadmissible hearsay. This is unlike 

Wolkoff, where the plaintiff failed to produce any evidence, 

admissible or not, supporting the amount of indebtedness. 

Id. at 829 n.2.

The instant case, like Beauchamp and Sas, featured a witness who

testified to an exact amount of damages, but relied on evidence not in the 

record. Furthermore, unlike Wolkoff, the loan payment history here was 

submitted into evidence. Therefore, the proper remedy in this case is to 

remand for further proceedings to properly establish the damages owed. 

See also Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011) 

(remanding for new damages determination where documentary evidence 

necessary to establish damage amount was erroneously admitted without 

foundation). 
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Conclusion

The trial court properly admitted the loan payment history under the 

business records exception. Likewise, the Bank was able to show the 

original plaintiff had standing at the time it filed suit. However, the trial 

court erred by basing the amount of the final judgment on a document not 

in evidence. Therefore, we reverse and remand for determination of the 

amounts owed. 

Affirmed in part, reversed in part.

WARNER and GROSS, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.