Cynthia L. Jackson v. Household Finance Corporation III ( 2020 )

Supreme Court of Florida
____________
No. SC18-357
____________
CYNTHIA L. JACKSON, et al.,
Petitioners,
vs.
HOUSEHOLD FINANCE CORPORATION III, et al.,
Respondents.
July 2, 2020
LAWSON, J.
This case is before the Court for review of the decision of the Second
District Court of Appeal in Jackson v. Household Finance Corp. III, 236 So. 3d
1170 (Fla. 2d DCA 2018). The district court certified that its decision directly
conflicts with Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA
2016), on the same question of law, giving us jurisdiction. See art. V, § 3(b)(4),
Fla. Const. For the reasons explained below, we approve Jackson, disapprove
Maslak, and hold that 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, as held by the
Second District. Jackson, 236 So. 3d at 1175.
BACKGROUND
On April 25, 2006, Cynthia Jackson executed a loan agreement to obtain a
residential loan in the amount of $146,841.79 from Household Finance Corp III
(HFC).1 Jackson and her husband (Petitioners) also executed a mortgage for the
same amount with HFC. The Second District explained:
Household Finance Corp III is the originating lender and the plaintiff
below. In 2002, well before the Jacksons executed the mortgage,
Household was purchased by HSBC Holdings and became a wholly-
owned subsidiary of HSBC.
Id. at 1172.
On June 23, 2014, HFC filed a foreclosure complaint against Petitioners and
other defendants, alleging that Petitioners defaulted under the terms of the note and
the mortgage. Petitioners did not challenge the default.
At the bench trial, HFC called a twenty-five-year employee of HSBC,
Assistant Vice President David Birsh, to establish the foundation for admission of
records under the business records exception to the hearsay rule. Counsel for HFC
asked Birsh if he has “access to the records maintained by HSBC with respect to
1. The mortgagee’s name is designated in some parts of the record as
“Household Finance Corporation III” and in other parts as “Household Finance
Corp III.” Petitioners did not challenge HFC’s standing to foreclose on any basis,
including this discrepancy.
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the mortgage loan account which is the subject of this instant action,” to which he
answered, “Yes, I do.” Counsel then asked Birsh the following questions:
Q. So are you familiar with the business practice of HSBC?
A. Yes, I am.
Q. And is it the regular business practice of HSBC to record acts,
transactions, payments, communications, escrow account activity
disbursements, events and analysis with respect to the mortgage loan
account?
A. Yes, it is.
Q. And are these business records prepared by persons with
knowledge of or from information transmitted by persons with
knowledge of the acts, transactions, payments, communications,
escrow account activity, disbursements and analyses?
A. Yes.
Q. And are all records made at or near the time the acts, transactions,
payments, communications, escrow account activity, disbursements,
events and analyses occur?
A. Yes.
....
Q. And are these records maintained by HSBC in the ordinary course
of its regular business activity of the mortgage, lending, banking and
service activity?
A. Yes, they are[.]
Q. Did HSBC prepare and maintain these records with respect to the
subject loan?
A. Yes.
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Counsel then moved the documents, including the original note, mortgage,
and loan payment history, into evidence. Counsel for Petitioners objected on
grounds of “hearsay,” explaining that Birsh had not “laid a foundation upon which
to testify as to these as business records or to authenticate any of these documents
based on personal knowledge.” The trial judge overruled the objection and
admitted the records into evidence.2
HFC rested its case, and counsel for Petitioners did not introduce any
evidence. The trial court entered final judgment of mortgage foreclosure in favor
2. In addition to challenging the foundation laid for the business records
exception to the hearsay rule set forth in section 90.803(6)(a), Florida Statutes
(2014), counsel for Petitioner also objected that Birsh did not properly
“authenticate any of these documents,” which we read as an objection based upon
section 90.901, Florida Statutes (2014) (“Authentication or identification of
evidence is required as a condition precedent to its admissibility. The requirements
of this section are satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.”). As is typically the case with any
custodian of business records, Birsh was required to both authenticate the
documents and lay a foundation for their admission as business records. See
Charles W. Ehrhardt, Florida Evidence, § 901.1, at 1288-89 (2019 ed.) (explaining
that authentication of an item of evidence does not make it “automatically
admissible” and that “after a document has been authenticated,” a witness must
then “lay the foundation for the admission of a document under a hearsay
exception”). However, all of Petitioner’s arguments on appeal relate to the hearsay
objection, thereby waiving any argument that the documents were not properly
authenticated under section 90.901. See Coolen v. State, 696 So. 2d 738, 742 n.2
(Fla. 1997) (stating that the failure to fully brief and argue points on appeal
“constitutes a waiver of these claims”).
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of HFC, and the Second District affirmed the judgment. Jackson, 236 So. 3d at
1171.
ANALYSIS
We review a trial court’s decision to admit evidence for an abuse of
discretion. Tundidor v. State, 221 So. 3d 587, 598 (Fla. 2017). “However, the
question of whether a statement is hearsay is a matter of law and is subject to de
novo review on appeal.” Id. at 598-99 (quoting Cannon v. State, 180 So. 3d 1023,
1037 (Fla. 2015)).
Florida’s Evidence Code sets forth the general rule that “hearsay” is not
admissible except as provided by statute, § 90.802, Fla. Stat. (2014), and defines
hearsay as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted,”
§ 90.801(1)(c), Fla. Stat. (2014). The Evidence Code defines some categories of
evidence as non-hearsay, and therefore generally admissible, see § 90.801(2), Fla.
Stat. (2014), and also lists a number of “exceptions,” which constitute categories of
admissible hearsay, see §§ 90.803(1)-(24), 90.804(1)-(2), Fla. Stat. (2014). The
business records exception to the hearsay rule provides for the admission of
“records of regularly conducted business activity” as follows:
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
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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.
§ 90.803(6)(a). As explained by the Second District,
A party can lay a foundation for the [admission of documents
pursuant to the] business records exception in three ways: (1) offering
testimony of a records custodian, (2) presenting a certification or
declaration that each of the elements has been satisfied, or (3)
obtaining a stipulation of admissibility. Yisrael v. State, 993 So. 2d
952, 956-57 (Fla. 2008).
Jackson, 236 So. 3d at 1172 (footnote omitted).
This case obviously involves the first method—testimony at trial of a
records custodian. With respect to this method, the Second District explained,
If the party offers the testimony of a records custodian to lay the
foundation, it is not necessary that the testifying witness be the person
who created the business records. Channell [v. Deutsche Bank Nat’l
Tr. Co.], 173 So. 3d [1017,] 1019 [(Fla. 2d DCA 2015)]; Specialty
Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1121 (Fla. 2d
DCA 1988). The witness may be any qualified person with
knowledge of each of the elements. Channell, 173 So. 3d at 1019;
Specialty Linings, 532 So. 2d at 1121.
Id.; see also Charles W. Ehrhardt, Florida Evidence § 803.6, at 1109-10 (2019 ed.)
(A witness must be able to “show that each of the foundation requirements is
present,” but “[i]t is not necessary to call the person who observed the matter
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recorded or actually made the entry.”). A qualified witness, therefore, is anyone
with personal knowledge of the organization’s regular business practices relating
to creating and retaining the record(s) at issue. Id. § 803.6, at 1111. This
knowledge will necessarily come from the witness’s training or experience, or,
most likely, a combination of both. 3 The foundation requirements are:
(1) that the record was made at or near the time of the event, (2) that it
was made by or from information transmitted by a person with
knowledge, (3) that it 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.
Jackson, 236 So. 3d at 1172 (quoting Channell, 173 So. 3d at 1019).
3. The “level of training or amount of experience necessary . . . depends
wholly on the subject of the testimony.” Bell v. State, 179 So. 3d 349, 357 (Fla.
5th DCA 2015). Even with respect to expert testimony, oftentimes, the amount of
training or experience required is minimal. See id. (explaining that, in the context
of the typical probation officer field test testimony, “very little” training or
experience is necessary “before a person can reliably interpret . . . preliminary drug
tests” and that “any person with the minimal training, experience, or both, needed
to understand these tests and how to read and explain their results would qualify to
testify to the results under section 90.702, Florida Statutes”). Likewise, we
generally observe that it should not take a new bank employee hired for an entry-
level position much time or training to become familiar with how the bank records
and keeps track of monetary transactions—a core function basic to the operation of
any financial institution. Because making and keeping records of loan and deposit
account transactions is the quintessential banking activity, it hardly seems possible
that someone could work in and then manage multiple departments at a bank over
a twenty-five-year period without learning how the bank makes a record of the
loan payments that it receives.
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Here, the proponent presented the testimony of a twenty-five-year employee
and executive vice president who testified that he was “familiar with the business
practices of the company” and that it was the company’s “regular business
practice” to “record acts, transactions, payments, communications, escrow account
activity, disbursements, events and analysis with respect to the mortgage loan
account.” He further testified that the documents met each of the other
foundational requirements set forth in section 90.803(6), using the language of the
statute or a close approximation of it, as detailed above. 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. See Greenfield v. Daniels, 51 So. 3d 421, 425 (Fla. 2010)
(“[W]hen the language of the statute is clear and unambiguous and conveys a clear
and definite meaning, there is no occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given its plain and obvious
meaning.” (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984))).
Rather, once the proponent lays the predicate for admission of documents set
forth in the statute and reflected in our case law, “the burden shifts to the opposing
party to prove that the records are untrustworthy,” Jackson, 236 So. 3d at 1172
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(citing Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994)), or that they should not be
admitted for some other reason. This would necessarily need to be done prior to
admission of the documents into evidence—so that the opponent can timely raise a
proper objection to admission of the documents—and could include questioning of
the witness as to the basis for his or her knowledge of the company’s business
practices.
In this case, the opponent waited until after the documents were admitted to
question the witness about the basis for his knowledge. Even then, although the
witness’s answer does not inspire confidence in his preparation for the opponent’s
question, neither does it reveal any disqualifying deficiency in his relevant
knowledge. Birsh explained that during his twenty-five years with the company he
had “been in the various departments” and “managed various departments” such
that he had “basically become really familiar with a lot of the different questions.”
He also mentioned “cross-training and what have you.” Additionally, on cross-
examination, Birsh testified that he first became familiar with the Jackson file and
documents “a couple of months ago.” Birsh explained that “upon [his] review of
the documents,” he personally “went into [HSBC’s] imaging system and reviewed
those documents and compared them to the ones that were printed today.” Birsh
stated that “they have not been changed,” and that “[t]hey are the same that have
been imaged in our system from the beginning.” These responses demonstrate a
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working knowledge of HSBC’s relevant record-keeping practices and system. The
opponent accepted Birsh’s responses and did not press the witness for further
details about the basis for his knowledge of his company’s relevant business
practices.
We also note that the opponent did not question Birsh’s assertion that the
documents were HSBC records. Although one might expect related companies to
have independent business practices and separate record-keeping systems, Birsh’s
uncontradicted testimony was that the documents were maintained by HSBC as
HSBC business records. And, the documents relating to the Jackson loan are
consistent with this testimony. For example, a screenshot of the computerized
account record relating to Jackson’s loan has a prominent HSBC logo at the top
and, under the HSBC logo, reads “HFC & Beneficial Members HSBC.”
Additionally, copies of correspondence to Jackson from HFC include a prominent
“HFC” logo that includes “Member HSBC Group” as part of that logo.
Because Birsh testified to his familiarity with the business practices of his
company and to each foundational requirement, we agree with the trial judge and
the Second District that Birsh’s testimony was “sufficient to satisfy [HFC’s] initial
burden to lay the predicate for the business records exception.” Jackson, 236 So.
3d at 1175; see also United States v. Langford, 647 F. 3d 1309, 1327 (11th Cir.
2011) (finding a proper foundation laid for the admission of business records
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where the records custodian testified that “she had personal knowledge of the
process involved in gathering the documents, that the documents had been
gathered from ongoing businesses at the bank, that the documents were not made
in response to a subpoena, and that the documents were part of, or appeared to be
part of, documents routinely held in the normal course of business”); United States
v. Atchley, 699 F. 2d 1055, 1058 (11th Cir. 1983) (finding a proper foundation laid
for the admission of business records where the records custodian testified that the
records “were kept in the ordinary course of business, that it was the ordinary
course of her business to make and keep such records, [and] that the records were
made on or about the time of the transactions reflected in the records”).
By contrast, the Fourth District in Maslak held that despite a bank
employee’s testimony describing her job duties and familiarity with the bank’s
loan servicing practices, she “was not qualified to lay a foundation for [the]
admission” of the loan servicing documents moved into evidence. 190 So. 3d at
658. Maslak does not elaborate on what deficiency it found with respect to the
witness’s qualification to lay the foundation for admission of the documents, and
we find her testimony to be sufficient, as a matter of law, to demonstrate her
qualification to testify as a records custodian, and to shift the burden to the
opponent to establish otherwise. Additionally, the Fourth District held that despite
the witness’s testimony that the proffered documents met all prerequisites for
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admission under section 90.803(6), the foundation was lacking because the witness
did not testify as to specific details of the bank’s “procedures for inputting payment
information into their systems and how the payment history was produced.” Id. at
659. Again, we disagree and hold that a qualified witness who has “testified as to
each element of the business records exception for the admission of” a business
record, id., has laid the proper predicate for admission of the document such that
the document should be admitted unless the opponent establishes it to be
untrustworthy, Love, 634 So. 2d at 160; Jackson, 236 So. 3d at 1172. This is why
the Second District disagreed with Maslak, and why we disapprove it.
The dissent argues that we are “tak[ing] away the records proponent’s
burden to lay a proper foundation for admission” of business records. Dissenting
op. at 38. Our ruling in this case does not subtract from that burden, which is set
by the plain words of the statute. A contrary ruling would, indeed, add to the
burden by requiring “factual specificity . . . [as to] how the records were compiled,
maintained, or utilized.” Id. at 28. The statute does not require this detail, and we
see no reason why it should be required as part of the proponent’s prima facie case.
The dissent seems to be arguing that in the absence of testimony explaining details
of a company’s relevant record-keeping practices, a records custodian cannot
“demonstrat[e] his personal knowledge” of the company’s record-keeping policies
and procedures. Id. This lack of detail seems to be the basis for the dissent’s
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conclusion that Birsh’s testimony did “not demonstrate that [he] had any personal
knowledge or actual familiarity with the business practices regarding HFC III’s
mortgage loan accounts.” Id. However, after 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).
The dissent also wrongly relies on Ehrhardt’s Florida Evidence to support its
argument that our opinion changes Florida law by creating “a special rule for
foreclosure actions.” Dissenting op. at 41 & n.8 (quoting Ehrhardt, Florida
Evidence § 803.6, at 1113-14, for the proposition that “[s]ome District Courts of
Appeal have expanded the records admissible under 90.803(6) in mortgage
foreclosure cases” where “multiple companies [are] involved in servicing an
individual loan as a result of a loan portfolio being sold or acquired by another
entity”).
Unlike the cases Ehrhardt references, however, this case does not involve
records from a prior servicer. Although the dissent does argue that because Birsh
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worked for HSBC, and not HFC, he was not qualified to lay a foundation for the
records admitted into evidence (claiming that there “certainly was no connection
established between HFC III and HSBC”), dissenting op. at 30-31, this assertion is
incorrect. Birsh testified that HSBC acquired HFC prior to origination of the loan
at issue and that the records “with respect to the mortgage loan account which is
the subject of this instant action” were “maintained by HSBC.” This testimony
was uncontradicted.
Finally, we address the Fourth District’s articulated justification for
concluding that a qualified witness must do more than testify to each foundational
element set forth in section 90.803(6) to satisfy the proponent’s initial burden of
demonstrating admissibility under the business records exception. The Fourth
District stated that the witness’s “parroting” of the statutory elements of the
business records exception was inadequate, Maslak, 190 So. 3d at 660, because
holding otherwise would transform Florida’s business records exception into a
“magic words” test contrary to the Fourth District’s case law. Id. at 659. The
Fourth District does not explain why more should be required, and we will explain
why a minimal testimonial foundation is both appropriate in this context and
desirable in terms of fairness and the efficient administration of justice.
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First, it is important to consider that what the Fourth District impugns as
“magic words” is the clear-cut foundation that we have said a party must make to
secure admission of a business record:
To secure admissibility under [Florida’s business-records] exception,
the proponent must show that (1) the record was made at or near the
time of the event; (2) 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). It would be odd if a party could
not make this required showing with straightforward testimony that each of the
criteria is met. Because the records custodian testimony is relevant only to the
collateral issue of essentially authenticating relevant documents, there is no reason
to prolong a trial and clutter a record with irrelevant details of those practices and
procedures. To do so would add unnecessary inefficiency into the process.
Second, it is important to understand the objectives and policy issues
surrounding evidentiary requirements for the authentication and admission of a
document by its proponent. “Evidence is authenticated when prima facie evidence
is introduced to prove that the proffered evidence is what its proponent claims.”
Ehrhardt, Florida Evidence § 901.1, at 1287. In this context, a party calls a records
custodian to authenticate the documents needed to prove its allegations and to lay a
foundation confirming that the proffered documents are in fact business records.
The word “confirming” is appropriate because documents proffered at trial are
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what they purport to be “in 99 out of 100 cases.” 2 McCormick on Evidence § 221
(7th ed. 2013).4 As explained in McCormick, the “principal justification” for
imposing authentication requirements in the rules of evidence is to create “a
necessary check on the perpetration of fraud.” Id. McCormick notes that
“requiring proof of what may be correctly assumed in 99 out of 100 cases is at best
time-consuming and expensive.” Id. McCormick also notes that although
“[t]raditional requirements of authentication admittedly furnish some guarantee
against fraudulent or mistaken attribution of a writing. . . . it has frequently been
questioned whether this benefit is not outweighed by the time, expense, and
occasional untoward results entailed by the traditional skeptical attitude toward
authenticity of writings.” Id. § 221 (7th ed. Supp. 2016). Courts have historically
attempted to ameliorate the time and expense required to prove this particular
collateral matter (that is almost always self-evident and true) by making it simple
to do. See, e.g., Lexington Ins. Co. v. W. Pennsylvania Hosp., 423 F.3d 318, 328
4. The dissent argues that our opinion makes “the mistake of conflating the
evidentiary concepts of authentication and admissibility” and that “this
fundamental legal error is at the root of the majority’s erroneous decision in this
case.” Dissenting op. at 36. We are not confused. We understand that a party
seeking to admit a document as a business record must both authenticate the
document and lay a proper “foundation” for admission with evidence
demonstrating that the document meets the criteria for admission as a business
record. Our point here is that these tasks are both related and similar in purpose,
and that the same policy considerations apply equally to both evidentiary
requirements.
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(3d Cir. 2005) (“We have repeatedly noted that ‘[t]he burden of proof for
authentication is slight.’ ”) (quoting McQueeney v. Wilmington Trust Co., 779 F.2d
916, 928 (3d Cir. 1985)). Again, this is consistent with the efficient administration
of justice. The company’s record-keeping practices are not on trial or otherwise
relevant to any issue framed by the pleadings. Adding complexity to the
foundation requirement in this context, as the Fourth District did, is inconsistent
with the appropriate objective of making litigation as simple and sensible as
reasonably possible.
Examining the payment history in a mortgage foreclosure case, such as this
one, is illustrative. We know that every commercial lender will necessarily have a
“regular practice” of making a record of payments and will necessarily keep that
record “in the ordinary course of business.” That record of payments will also of
necessity be “made at or near the time” that the payment is received by a “person
with knowledge” of the payment amount and date of receipt. In other words, 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. In this case, as in most, the debtor
does not even dispute the accuracy of the payment history as reflected in the
records admitted. Rather, she simply argues for reversal on the theory that her
lender should have been required to prove additional collateral facts before it could
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introduce records to establish material facts that she does not contest. We should
not impose that additional burden on litigants. Of course, a litigant is free to
contest the genuineness of the documents, as business records or otherwise, if he or
she has a basis to do so. This would be true irrespective of the quantum of detail
we require as part of the threshold showing to establish a document as a business
record—meaning that requiring the showing detailed in the plain language of the
statute, and not more, will in no way prejudice any party that has a legitimate basis
to challenge admissibility of the document in question.
CONCLUSION
For the foregoing reasons, we resolve the certified conflict by holding that
the testimony of a qualified witness confirming the presence of each foundation
requirement of the business records exception constitutes a sufficient predicate for
the admission of records under this exception to the hearsay rule. Accordingly, we
approve the Second District’s decision and disapprove the Fourth District’s
decision.
It is so ordered.
CANADY, C.J., and MUÑIZ and COURIEL, JJ., concur.
POLSTON, J., dissents with an opinion, in which LABARGA, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
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POLSTON, J., dissenting.
I agree with the Jacksons’ evidentiary objection that the records proponent’s
witness in this case failed to lay “a foundation upon which to testify as to these as
business records.” Only records identified as from HSBC 5 were admitted under
the business records exception to the hearsay rule, and none from the plaintiff,
Household Finance Corporation III. Moreover, the records proponent’s witness,
who was an employee of HSBC, made only general statements parroting the
statutory elements of the business records exception without any identified basis of
how the records were generated, what they were used for, or how they were
maintained. And there was no connection established between the plaintiff and
HSBC. As a result, the witness did not demonstrate personal knowledge of the
records at issue or personal knowledge sufficient to affirm the statutory elements
of the business records exception. Therefore, I respectfully dissent from the
majority’s decision, which transforms Florida’s business records exception into a
magic-words test only requiring the recitation of the statute.
I. BACKGROUND
At the bench trial in this mortgage foreclosure case, the originating lender
and plaintiff, Household Finance Corporation III (HFC III), sought to admit several
5. “HSBC” was identified in the admitted records as HSBC Holdings, PLC.
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documents related to the mortgage account pursuant to the business records
exception, section 90.803(6), Florida Statutes. Specifically, the documents in HFC
III’s composite exhibit were identified as records maintained by HSBC, including
the following: a merger announcement from 2002 indicating that HSBC Holdings,
PLC, planned to acquire Household International, Inc., by the first quarter of 2003,
which was printed from the Securities and Exchange Commission (SEC) Edgar
website in 2015; the loan agreement listing HFC III as the lender and Cynthia
Jackson as the borrower; the mortgage executed by Petitioners listing HFC III as
the mortgagee; a printout of Petitioners’ loan payment history with an “HFC
Member HSBC Group” logo; snapshots from HSBC’s computer database; breach
letters sent to Petitioners from HFC III with an “HFC Member HSBC Group” logo
in the right hand corner; and a screenshot reflecting when the breach letters were
sent with no indication of what entity generated the screenshot.
HFC III offered the testimony of one witness, David Birsh, 6 an employee of
HSBC, to lay the foundation for the admission of the documents as business
records. Birsh stated that he was an Assistant Vice President at HSBC, was
familiar with HSBC’s business practices, and had access to the Jacksons’ mortgage
loan account. Then, in response to HFC III counsel’s recitation of the elements of
6. The witness’ name was spelled phonetically by the court reporter.
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the business records exception, Birsh responded that “yes” each of the statutory
requirements was met. Birsh testified that “yes” he was familiar with HSBC’s
business practices, “yes” these records are prepared by people with knowledge,
“yes” the records are made near the time of the acts, “yes” the records are
maintained by HSBC in the ordinary course of its business, and “yes” HSBC
prepared and maintained these records.
Counsel for HFC III then moved to admit the records into evidence. The
Jacksons’ counsel objected that the records were hearsay and that Birsh “hasn’t
laid a foundation upon which to testify as to these as business records or to
authenticate any of these documents based on personal knowledge.” 7 The trial
judge overruled the Jacksons’ objection and admitted the documents.
7. The Jacksons were not required to raise multiple, repeated, or more
explanatory objections to the admission of the documents under the business
records exception to the hearsay rule based upon the failure to lay a proper
foundation. See, e.g., Carter v. State, 951 So. 2d 939, 943 (Fla. 4th DCA 2007)
(“[W]hen the state moved the police report/affidavit into evidence under the
business records hearsay exception, appellant objected on relevancy, hearsay, and
foundation grounds. He makes the same argument on appeal that the document
should not have come in as a business record; that it was hearsay. Thus,
appellant’s hearsay objection was sufficient to preserve for appellate review his
arguments regarding admission of the police report/affidavit.”); Richardson v.
State, 875 So. 2d 673, 676 (Fla. 1st DCA 2004) (“Appellant correctly cites
Andrews v. State, 261 So. 2d 497 (Fla. 1972), for the proposition that an objection
to a question on hearsay grounds is sufficient to preserve for appellate review the
failure of the proponent of the testimony to lay a proper predicate [for admission
under the business records exception].”).
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On cross-examination, the Jacksons’ counsel asked Birsh when he became
familiar with the file, and he replied that the first time was “a couple of months
ago.” Birsh explained that he “went into our imaging system and reviewed those
documents and compared them to the ones that were printed today, and they have
not changed. They are the same that have been imaged in our system from the
beginning.” He then testified as follows:
Q. And you testified that you’re familiar and I forget the exact
language, with the recordkeeping procedures of HSBC. How did you
gain that familiarity?
A. Well, I’ve been there for 25 years. So I’ve been in the various
departments, managed various departments. So I’ve basically become
really familiar with a lot of the different questions. Like cross-
training and what have you.
II. ANALYSIS
The Florida Evidence Code provides that hearsay is inadmissible except as
provided by statute. See § 90.802, Fla. Stat. (2014). Section 90.801, Florida
Statutes (2014), defines hearsay as “a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evidence to prove the truth
of the matter asserted.” And the business records exception to the hearsay rule
And to be clear, I address the validity of the Jacksons’ hearsay objection in
this dissent, not the validity of the Jacksons’ authentication objection that was not
pursued on appeal.
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provides for the admission of “records of regularly conducted business activity” as
follows:
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.
§ 90.803(6)(a), Fla. Stat. (2014) (emphasis added). “The rationale behind the
business records exception is that such documents have a high degree of reliability
because businesses have incentives to keep accurate records.” Bank of New York v.
Calloway, 157 So. 3d 1064, 1070 (Fla. 4th DCA 2015) (quoting Timberlake
Constr. Co. v. U.S. Fid. & Guar. Co., 71 F.3d 335, 341 (10th Cir. 1995)).
To lay a proper foundation for the admission of business records, the
proponent must show that “(1) the record was made at or near the time of the
event; (2) 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). The records proponent
- 23 -
can present that information in one of three ways: (1) provide a witness—either
the records custodian or other qualified witness—to testify under oath at trial to the
statutory requirements; (2) present a certification or declaration from the records
custodian or other qualified person that complies with sections 90.803(6)(c) and
90.902(11), Florida Statutes; or (3) stipulate with the opposing party to the
admissibility of the documents as business records. Id. at 956-57. This case
involves the first method.
When using witness testimony to lay the foundation for the admission of
business records,
it is necessary to call a witness who can show that each of the
foundational requirements set out in the statute is present. It is not
necessary to call the person who actually prepared the document.
Twilegar v. State, 42 So. 3d 177, 199 (Fla. 2010) (quoting Forester v. Norman
Roger, Jewell & Brooks Int’l, Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1992));
see also Charles W. Ehrhardt, Florida Evidence § 803.6, at 1109-10 (2019 ed.) (A
witness must be able to “show that each of the foundation requirements is present,”
but “[i]t is not necessary to call the person who observed the matter recorded or
actually made the entry.”).
Importantly, such a witness must have requisite knowledge of the business
procedures used to make the record. See Twilegar, 42 So. 3d at 199 (“The records
custodian or any qualified witness who has the necessary knowledge to testify as to
- 24 -
how the record was made can lay the necessary foundation.” (quoting Forester,
610 So. 2d at 1373); Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla.
1st DCA 2014) (finding testimony from witness insufficient to lay the proper
foundation when the witness lacked “personal knowledge” of the record-keeping
procedures).
Professor Charles Ehrhardt has explained that the witness must have
“personal knowledge” of how a business record was made. Ehrhardt, Florida
Evidence § 803.6, at 1111. Specifically, Professor Ehrhardt states that “[s]ection
90.803(6)(a) provides that a custodian or otherwise qualified witness who has
personal knowledge of the method employed by the business establishes that each
of the foundation requirements is present with respect to the record can lay the
foundation for the admission of the record.” Id. at 1110-11 (emphasis added).
Stated otherwise, “a qualified person to introduce business records, other
than the records custodian, must be a person, who by the very nature of that
person’s job responsibilities and training, knows and understands the records
sought to be introduced.” Lassonde v. State, 112 So. 3d 660, 663 (Fla. 4th DCA
2013). When the business records sought to be admitted are “in the form of
computer or electronic records, such as a computerized loan transaction history, the
foundational witness ought to possess knowledge of the record-keeping system.”
Channell v. Deutsche Bank Nat’l Tr. Co., 173 So. 3d 1017, 1019 (Fla. 2d DCA
- 25 -
2015); see also Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121,
1121 (Fla. 2d DCA 1988). Further, “[i]n the context of a foreclosure action, a
representative of a loan servicer testifying at trial . . . must be familiar with and
have knowledge of how the ‘company’s data [is] produced,’ ” Sanchez v. Suntrust
Bank, 179 So. 3d 538, 541 (Fla. 4th DCA 2015) (second alteration in original)
(quoting Glarum v. LaSalle Nat’l Ass’n, 83 So. 3d 780, 783 (Fla. 4th DCA 2011)),
and be “familiar with the bank’s record-keeping system and [have] knowledge of
how the data was uploaded into the system,” id. (quoting Weisenberg v. Deutsche
Bank Nat’l Tr. Co., 89 So. 3d 1111, 1112-13 (Fla. 4th DCA 2012)).
If the records proponent does not lay the proper foundation, the records are
not admissible under section 90.803(6). Yisrael, 993 So. 2d at 956 (“[T]he
evidentiary proponent . . . ha[s] the burden of supplying a proper predicate to admit
this evidence under an exception to the rule against hearsay.”); Caldwell v. State,
137 So. 3d 590, 591-92 (Fla. 4th DCA 2014) (holding evidence inadmissible under
section 90.803(6) when the State failed to lay the proper foundation); Ehrhardt,
Florida Evidence § 803.6, at 1111-12 (“If a party does not lay the necessary
foundation, the document is not admissible under section 90.803(6).”). However,
if (and only if) the records proponent lays the necessary foundation for the
admissibility of business records, the burden shifts to the opposing party to show
their untrustworthiness. Love v. Garcia, 634 So. 2d 158, 160 (Fla. 1994) (“Once
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this predicate is laid, the burden is on the party opposing the introduction to prove
the untrustworthiness of the records. If the opposing party is unable to carry this
burden, then the record will be allowed into evidence as a business record.”); see
also Ehrhardt, Florida Evidence § 803.6, at 1109 (“If the trial court finds pursuant
to 90.105 that each [of] the [foundational] requirements has been proven by a
preponderance of the evidence, then the burden shifts to the opposing party to
show the lack of trustworthiness of the record.”).
Additionally, this Court has made clear that evidence admitted under an
exception to the hearsay rule “must be offered in strict compliance with the
requirements of the particular exception.” Yisrael, 993 So. 2d at 957 (quoting
Johnson v. Dep’t of Health & Rehab. Servs., 546 So. 2d 741, 743 (Fla. 1st DCA
1989)).
Here, Birsh testified that he was an Assistant Vice President of HSBC and
that he had “access to the records maintained by HSBC with respect to the
mortgage loan account which is the subject of this instant action.” He then said
“yes” as HFC III’s counsel recited the statutory elements of the business records
exception. On cross-examination, Birsh testified that he had “been there for 25
years” and “in the various departments, managed the various departments” and that
he first became familiar with the file “a couple of months ago.”
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However, this testimony does not demonstrate that Birsh had any personal
knowledge or actual familiarity with the business practices regarding HFC III’s
mortgage loan accounts or personal knowledge of the method employed to make
the records at issue. He only testified that the printed documents were the same as
what the HSBC computer system showed. This testimony, his job title, and length
of employment do not provide any details regarding his training or experience that
could possibly demonstrate that he knew how the records were prepared and
maintained. In addition, Birsh’s agreement with HFC III’s counsel’s recitation of
the statutory elements of the business records exception lacked any factual
specificity demonstrating his personal knowledge of how the records were
compiled, maintained, or utilized.
In other words, “the witness simply ‘regurgitated the magic words,’ but was
unfamiliar with, and had no knowledge of, how the records were created and kept.”
Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656, 659 (Fla. 4th DCA 2016).
“What is missing here is testimony about [the] procedures for inputting payment
information into their systems and how the payment history was produced.” Id.“[Birsh] failed to testify about how payments were received and processed, [the]
procedures for inputting payment information, or the computer system [utilized].”
Id. at 660; see also Miller v. Bank of America, N.A., 201 So. 3d 1286, 1288 (Fla.
5th DCA 2016) (holding that the witness had not laid the proper foundation, even
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though she gave “affirmative answers to the business record foundation questions,”
because her testimony “was not based on personal knowledge”); Sanchez, 179 So.
3d at 541 (holding that the witness did not have “sufficient knowledge to lay the
foundation for the admission of the screenshot into evidence” because the witness
“did not know anything about the process by which [the records] were created”).
The majority belittles the complexity of banking records and assumes it
would be easy for any “new bank employee hired for an entry-level position” to
learn a banking system since keeping track of transactions is “the core function . . .
of any financial institution”; therefore, a 25-year employee would obviously know
the ins and outs of all of the banking records. Majority op. at 7 n.3. The majority
is ill informed. Just because someone works at a bank for 25 years does not
demonstrate that the employee knows the correct documentation that a particular
entity uses for specific information or how a system works. Different banks use
different types of records that are processed differently and are shown in different
ways. That is a lot of difference. There is no dispute that Birsh could learn the
system at least as quickly as a new banking employee, but there was no evidence to
demonstrate he had yet done so.
Moreover, a parent relationship of HSBC to HFC III was not established.
The majority quotes the Second District’s decision when stating that the parent
relationship exists, but nowhere in the record was such a relationship established.
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The document improperly introduced into evidence under the business records
exception does not do that as it is simply a merger announcement from 2002
indicating that HSBC Holdings, PLC, was planning to acquire Household
International, Inc., by the first quarter of 2003. The merger announcement
mentions that Household International, Inc., is the parent company of Household
Financial Corporation, but Household Financial Corporation is a different legal
entity and business than the plaintiff here, Household Financial Corporation III.
When introducing the merger announcement, counsel for HFC III asked Birsh to
identify it, and Birsh stated that “[t]his is the merger announcement which
indicates that HSBC merged – purchased Household Finance Corporation III” and
answered in the affirmative that the agreement is maintained as part of HSBC’s
business records. But, it bears repeating, the announcement actually discussed an
anticipated merger between HSBC and Household International (the parent of
Household Financial Corporation), not one that had already taken place between
HSBC and the plaintiff in this case, Household Financial Corporation III (HFC
III). In fact, the merger announcement, which appears to have been filed with and
maintained by the SEC, does not mention HFC III at all. The majority, the Second
District, and HFC III appear to be merely relying on the fact that HFC and HFC III
have similar names; but they are different legal entities with no connection
established between them in this record. There certainly was no connection
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established between HFC III and HSBC, the company that was at some point
contemplating the purchase of the similarly named Household International. And
no servicing agreement was mentioned or produced. Without an established
connection between the two entities, Birsh’s testimony that he personally “went
into [HSBC’s] imaging system” could not possibly demonstrate any personal
knowledge regarding HFC III’s loan documents or HFC III’s record-keeping
system. Further, a comparison of what is on a computer screen to a printout to see
if there were any changes is certainly not a demonstration of working knowledge
of business record practices and systems. Someone totally unfamiliar with any
business records from anywhere could do that. That is not sufficient under the
statute to admit hearsay documents.
To summarize, in this case, there were general statements that are a
recitation of the statute without any identified basis of how the business records at
issue were generated, what they were used for, or how they were maintained.
These general statements were from an employee of HSBC, a different company
than the plaintiff, who identified the records as records of HSBC even though some
of the records only have the plaintiff’s name on them, and no connection was
established between HSBC and the plaintiff. These general statements do not
demonstrate that the employee of HSBC had sufficient personal knowledge to
affirm the statutory elements of the business records exception with respect to the
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records relating to HFC III’s loan. Accordingly, HFC III failed to meet its burden
of laying a proper foundation for the admission of the records relating to its loan.
The burden never shifted to the Jacksons to prove the untrustworthiness of the
records, and the trial court erred in admitting the documents without a proper
foundation. Cf. CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th
DCA 2016) (holding that a witness was qualified to lay the foundation for a letter
as a business record because she testified as to when and how the letters were
created and mailed and that she had “trained side-by-side with someone in that
department and had observed the entire process”); Wells Fargo Bank, N.A. v.
Balkissoon, 183 So. 3d 1272, 1276-77 (Fla. 4th DCA 2016) (holding that proper
foundation was laid because the witness “demonstrated he had personal knowledge
concerning the accuracy of Bank of America’s records,” and he testified that “[t]he
AS400 system contains basic loan information, including the payment history,
escrow information, and property address[, that] Bank of America applies
payments it receives to the interest and principal on the loan and then to tax and
insurance[, and that t]he payment center records the allocation of funds in the
AS400 system”); Lindsey v. Cadence Bank, N.A., 135 So. 3d 1164, 1168 (Fla. 1st
DCA 2014) (holding that an assistant vice president had sufficient understanding to
lay the foundation for the admission of computer printouts as business records
because she explained that the computer loan processing system automatically
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creates account balances, that the bank’s loan processing employees enter each
received payment into the system, that loan payments are entered into the system
when the transaction happens, and that loan records are updated within a day);
Cooper v. State, 45 So. 3d 490, 492-93 (Fla. 4th DCA 2010) (holding that trial
court did not err in admitting records as the witness had “training and experience”
in records processing, customer support, billing, and data servicing and testified
how the business maintained and prepared its records); see also Noble v. Ala. Dep’t
of Envtl. Mgmt., 872 F.2d 361, 366-67 (11th Cir. 1989) (requiring a foundational
witness to give testimony “that he had personal knowledge of the circumstances
under which the [records] were prepared” rather than “simply testif[ying] that he
had seen the letter before and that it was prepared in the ‘ordinary course’ of
ADEM’s business”); U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d
1040, 1042-45 (9th Cir. 2009) (holding that the claims manager laid the proper
foundation because the witness explained the details of how employees input
records of payments into the database, explained how the database was queried,
testified about the computer used to compile and search records, and detailed how
the summaries matched with the “backup documentation”); United States v.
Jenkins, 345 F.3d 928, 934-36 (6th Cir. 2003) (determining that a U.S. Postal
Inspector laid the proper foundation for admission of mailing labels because he
“testified that he was familiar with these labels through his training and experience
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and that he commonly dealt with these records”); Lorraine v. Market Am. Ins. Co.,
241 F.R.D. 534, 545-46 (D. Md. 2007) (“It is necessary, however, that the
[foundational] witness provide factual specificity about the process by which the
electronically stored information is created, acquired, maintained, and preserved
without alteration or change, or the process by which it is produced if the result of
a system or process that does so, as opposed to boilerplate, conclusory statements
that simply parrot the elements of the business record exception to the hearsay
rule . . . .”).
The majority complains about the Fourth District’s description of “magic
words.” When I refer to the majority only requiring a recitation of the statutory
elements as a magic-words test, it is because the recitation serves as a mere
illusion, meaning that simply saying the words is intended to make something
appear to be present when it is not. It makes it appear that the records proponent
has actually proven what the statute requires even though the witness has only
repeated the words of the statute. Unfortunately, the majority’s holding only
involves saying the statutory elements without concern over what the response is,
who is giving it, and whether the records custodian or person testifying actually
has personal knowledge sufficient to demonstrate that the documents should be
admitted into evidence. Business records are admissible as an exception to the
hearsay rule because they are considered reliable since businesses have an
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incentive to keep accurate records. See, e.g., Bank of New York, 157 So. 3d at
1070; Timberlake Constr. Co., 71 F.3d at 341; see also Ehrhardt, Florida Evidence
§ 803.6, at 1097 (“The evidence is reliable because it is of a type that is relied upon
by a business in the conduct of its daily affairs and the records are customarily
checked for correctness during the course of the business activities.”); 2
McCormick on Evidence § 286 (7th ed. 2013) (“Reliability is furnished by the fact
that regularly kept records typically have a high degree of accuracy. The regularity
and continuity of the records are calculated to train the recordkeeper in habits of
precision; if of a financial nature, the records are periodically checked by balance-
striking and audits; and in actual experience, the entire business of the nation and
many other activities function in reliance upon records of this kind.”). But
documents should only be admitted as reliable business records if the proponent’s
witness provides testimony actually demonstrating personal knowledge and
establishing that these are the type of documents that fall into the category of
reliable business records.
Moreover, I strongly disagree with the majority’s contention that, because
the foundational witness’ testimony is “relevant only to the collateral issue of
essentially authenticating relevant documents, there is no reason to prolong a trial
and clutter a record with irrelevant details of those practices and procedures.”
Majority op. at 15. This contention (as well as the majority’s out-of-place policy
- 35 -
discussion regarding authentication and lender records) demonstrates that the
majority, notwithstanding its protest to the contrary, is making the mistake of
conflating the evidentiary concepts of authentication and admissibility. And this
fundamental legal error is at the root of the majority’s erroneous decision in this
case.
Section 90.901, Florida Statutes (2014), of the Florida Evidence Code
provides the following regarding authentication:
Authentication or identification of evidence is required as a
condition precedent to its admissibility. The requirements of this
section are satisfied by evidence sufficient to support a finding that
the matter in question is what the proponent claims.
However, as Professor Ehrhardt explains, “[i]f an item of evidence has been
authenticated, it is not automatically admissible.” Ehrhardt, Florida Evidence
§ 901.1, at 1288. “When a document is authenticated, there has only been
evidence introduced, or an agreement by counsel, that the document or writing is
what it purports to be.” Id. at 1288-89. But “[t]he hearsay rule, or other
exclusionary rule may still exclude the evidence.” Id. at 1289. Professor Ehrhardt
continues, “In other words, after document is authenticated, a witness must lay the
foundation for the admission of a document under a hearsay exception; for
example, the business record or public record exception.” Id.; see also United
States v. Browne, 834 F.3d 403, 415 (3d Cir. 2016) (“Evidence that is properly
authenticated may nonetheless be inadmissible hearsay if it contains out-of-court
- 36 -
statements, written or oral, that are offered for the truth of the matter asserted and
do not fall under any exception enumerated under Federal Rule of Evidence 802.”);
2 McCormick on Evidence § 227, at 102-03 (“Again, it must be emphasized that
authentication does not secure admissibility of electronic documents into evidence.
As with more traditional forms of written evidence, if the electronic or computer-
generated writing is used to prove the truth of its contents, the hearsay rule must be
satisfied.”). Professor Ehrhardt also explains that, “[a]lthough the term
authenticate is sometimes used to refer to whether a proper foundation has been
laid for a document, this usage is imprecise and can be misleading.” Ehrhardt,
Florida Evidence § 901.1, at 1289; see also Arce v. Wackenhut Corp., 40 So. 3d
813, 816 (Fla. 3d DCA 2010) (“It appears that Arce believes either that a federal
authentication of the [hearsay] document will ipso facto make the document
admissible, or that Arce may be able to persuade the FBI to include something
additional in the certification that will make the document admissible into
evidence. Arce again errs, first by making the common legal error of conflating
authenticity of a document with admissibility . . . .); Friedle v. Bank of New York
Mellon, 226 So. 3d 976, 978 (Fla. 4th DCA 2017) (explaining that “[w]hile it was
certified by the Securities and Exchange Commission (“SEC”) as being filed with
that agency, and thus was self-authenticating, there is a difference between
authentication and admissibility” and holding that “[t]he Bank did not present
- 37 -
sufficient evidence through its witness to admit this unsigned document as its
business record”).
Accordingly, while the majority’s conflating of authentication and
admissibility is a common mistake, it has misled the majority into reducing the
requirements for laying a proper foundation for the admission of documents under
the business records exception into a mere formality, which is contrary to the
Florida Evidence Code. Simply stated, the majority is increasing the likelihood
that inadmissible documents will be admitted into evidence simply because they
were authenticated.
The majority counters that a litigant would still be “free to contest the
genuineness of the documents . . . irrespective of the quantum of detail we require
as part of the threshold showing,” majority op. at 18, but this flips the burden of
laying the foundation for admission of records from the records proponent to the
party against whom they are to be admitted. Such a flip in the burden of proof is
contrary to the Florida Evidence Code. See § 90.803(6)(a), Fla. Stat.; Yisrael, 993
So. 2d at 956 (“[T]he evidentiary proponent . . . ha[s] the burden of supplying a
proper predicate to admit this evidence under an exception to the rule against
hearsay.”). Of course, the majority’s willingness to take away the records
proponent’s burden to lay a proper foundation for admission most likely arises
from the majority’s legal error of confusing admissibility with authentication.
- 38 -
Compare Ehrhardt, Florida Evidence § 901.1, at 1287-88 (“Evidence is
authenticated when prima facie evidence is introduced to prove that the proffered
evidence is what its proponent claims. The finding of authenticity does not mean
that the trial judge makes a finding that the proffered evidence is genuine. The
judge only determines whether prima facie evidence of its genuineness exists.
Once the matter has been admitted the opposing party may challenge its
genuineness. The jury then determines as a matter of fact whether the evidence is
genuine.”) (footnotes omitted) with Ehrhardt, Florida Evidence § 803.6, at 1103-04
(“While the trial judge has the duty under section 90.105(1) to make a factual
determination that the proponent of the document has demonstrated the necessary
foundation for the admission of a business record, the opponent has the burden of
showing sufficient lack of trustworthiness. The record is inadmissible if the trial
court makes the section 90.105(1) determination that the opponent has shown that
the record is not trustworthy. Even if the court rules that the record is admissible
under section 90.803(6), opposing counsel can offer the same evidence of lack of
trustworthiness to the weight and credibility that should be given the record.”)
(footnote omitted). In other words, the majority conflates the question of whether
a document is genuine with the question of whether a document is an admissible
business record, which leads it to confuse the burdens of proof specific to each
question.
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Finally, I disagree with the majority’s characterization of requiring the
records proponents to satisfy the foundational requirements for the admission of
business records as requiring “irrelevant details” of a business’ “practices and
procedures.” To belabor the point, these details that “clutter the record” are needed
to demonstrate that records at issue are in fact business records that should be
admitted into evidence. Like the majority, I have no doubt that most commercial
lenders can produce witnesses who can lay the proper foundation for the admission
of their records under the business records exception. But the particular lender in
this particular case did not, and this Court should not change the rules that help
ensure the reliability of evidence that is admitted as an exception to the general bar
against hearsay simply because the details may seem tedious to some and most
lenders can meet the requirements anyway. Mistakes with records that are used to
establish large judgments happen. We should not eliminate foundational
requirements that safeguard the reliability and accuracy of evidence.
III. CONCLUSION
To lay the proper foundation for the admission of records under the business
records exception to the hearsay rule, the records proponent’s witness must do
more than merely echo the statutory elements of the exception and identify
employment and familiarity with a different company. The witness must
demonstrate that he personally has the sufficient knowledge to affirm the statutory
- 40 -
elements of the business records exception by demonstrating personal knowledge
of the methods utilized by the business regarding the records at issue, such as how
the records were created, what they were used for, and how they were maintained.
Otherwise, the business records exception to the hearsay rule becomes a magic-
words test rather than a requirement that the records proponent demonstrate the
reliability of the business records.
At worst, with general application, the majority’s opinion seriously
undermines the propriety of the business records exception to hearsay. At best, it
creates a special rule for foreclosure actions. 8 Accordingly, I would quash the
8. Cf. Ehrhardt, Florida Evidence § 803.6, at 1113-14 (“Some District
Courts of Appeal have expanded the records admissible under 90.803(6) in
mortgage foreclosure cases. In many cases, there are multiple companies involved
in servicing an individual loan as a result of a loan portfolio being sold or acquired
by another entity. In order to establish the loan payment history, an employee of
the current servicer frequently has no knowledge of the record-keeping system or
process used by prior servicers and therefore cannot lay the foundation under
90.803(6) for the records maintained by the prior servicer. These decisions have
determined that the testimony of an employee of a current servicer can lay the
foundation for the records of a former servicer if the testimony establishes that the
current servicer independently verified the accuracy of the former servicer’s
records regarding the payment history and details the procedure used to verify the
accuracy of the payment histories. Presumably, this verification goes beyond
confirming that the amount due on the former servicer’s records is the same as the
amount entered in the current servicer’s records. While the decisions seem to
focus on records in the mortgage servicing industry, which are plagued by
inaccuracies, its rationale extends to all records offered under 90.803(6) which are
records of a prior business and are presently located in the records of the current
business. While records acquired from another business and incorporated into the
record of the acquiring business can fairly be treated as being made by the
acquiring business, the acquired records should be admissible only if the other
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Second District’s decision in Jackson v. Household Finance Corp. III, 236 So. 3d
1170 (Fla. 2d DCA 2018), and approve the Fourth District’s decision in Maslak v.
Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA 2016). I respectfully
dissent.
LABARGA, J., concurs.
Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions
Second District - Case No. 2D15-2038
(Manatee County)
Nicole M. Ziegler of Emerson Straw, PL, St. Petersburg, Florida,
for Petitioner
Matthew A. Ciccio and Spencer Gollahon of Aldridge Pite, LLP, Delray Beach,
Florida,
for Respondent
Robert R. Edwards of Choice Legal Group, P.A., Fort Lauderdale, Florida; David
Rosenberg of Robertson, Anschutz & Schneid, P.L., Boca Raton, Florida; Marissa
M. Yaker of Padgett Law Group, Tallahassee, Florida; and Andrea R. Tromberg of
Tromberg Law Group, P.A., Boca Raton, Florida,
for Amicus Curiae American Legal and Financial Network
requirements of section 90.803(6) are satisfied. The decisions are a significant
change in Florida law and inconsistent with many other Florida decisions.”)
(footnotes omitted).
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