by Jane E. Bond, Esq.

McCalla Raymer Leibert Pierce, LLC
USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY, OR, TX, WA)

The Florida Supreme Court issued a ruling clearly setting forth the standard of admission of business records under the business records exception to the hearsay rule. In Jackson v. Household Fin. Corp. III, 298 So.3d 531 (Fla. 2020), the Court held “the proper predicate for admission of records into evidence under the business records exception to the hearsay rule can be laid by a qualified witness testifying to the foundational elements of the exception.”

A 25-year employee of the servicer, David Birsh, was the witness who laid the foundation for the admission of the business records including the note, mortgage, and pay history. Opposing counsel objected to the admission of the business records on hearsay grounds, stating the witness had not laid the proper foundation and failed to authenticate any of the documents based on personal knowledge. The Judge admitted the records into evidence over the objection. The trial court entered final judgment for HFC and the borrower appealed, but the Second District Court of Appeals affirmed the judgment. The Supreme Court accepted the case due to conflict within the Florida Appellate Courts as to the standard of admission of business records.

In analyzing the case, the Florida Supreme Court looked at the general hearsay rule that “hearsay” is not admissible except as provided by statute. The exceptions allow admission of records of regularly conducted business activity per FL Statute 90.803(6)(a), including:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The Supreme Court found the witness testimony met the business records exception to the hearsay rule. Once the proponent lays the predicate for the admission of documents the court found “the burden shifts to the opposing party to prove that the records are untrustworthy, or that they should not be admitted for some other reason. No additional foundation is required by the statute or by any case from this Court, and we reject the notion that the witness must also detail the basis for his or her familiarity with the relevant business practices of the company or give additional details about those practices as part of the initial foundation because this would be inconsistent with the plain language of the statute.”

Additionally, the Florida Supreme Court held, “Birsh testified to his years of experience with the bank, he then testified that he was familiar with the company’s business practices. That testimony is direct evidence that Birsh was familiar with the relevant business practices, including how the bank records and tracks monetary transactions, and was sufficient to make a prima facie showing that Birsh was qualified to give the testimony that followed authenticating the documents and laying the foundation for their admission as business records pursuant to the express requirements of section 90.803(6)(a).”

Further the Court quoted Ehrhardt, Florida Evidence, “Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is what its proponent claims.” The records custodian is the party called to authenticate the documents and to lay the foundation for “confirming” the business records. Directly from an additional source, McCormick on Evidence, the Court continued, “The word ’confirming’ is appropriate because documents proffered at trial are what they purport to be “in 99 out of 100 cases.” 2 McCormick on Evidence § 221 (7th ed. 2013).

Ensuring clarity for the Circuit Judges in Florida, the Supreme Court specifically found in mortgage foreclosure cases; “it is extraordinarily unlikely in any mortgage foreclosure case that records meeting the business records exception to the hearsay rule will not exist or that the proffered records are not exactly what they purport to be.”

Based on the Jackson case, business records will be more easily admitted into evidence in Florida. Attorneys may still encounter the unnecessary objections from opposing counsel to delay the case and cause confusion; however, the strong language in favor of mortgage servicers in this case will be a powerful weapon to counter any objections and prevail.
 

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Winter 2021 USFN Report