Cynthia L. Jackson v. Household Finance Corporation III

• Court: Supreme Court of Florida
• Decided: July 2, 2020
• Docket: SC18-357
• Status: Published

Opinion

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.

-2- 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?

....

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?

-3- 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”).

-4- 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

-5- 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

-6- 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.

-7- 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

-8- (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

-9- 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

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

- 10 - 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

- 11 - 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

- 12 - 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

- 13 - 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.

- 14 - 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

- 15 - 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.

- 16 - (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

- 17 - 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.

- 18 - 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.

- 19 - 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.

- 20 - 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].”).

- 21 - 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.

- 22 - 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

- 26 - 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.”

- 27 - 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

- 28 - 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.

- 29 - 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

- 30 - 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

- 31 - 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

- 32 - 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

- 33 - 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

- 34 - 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.

- 39 - 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

- 41 - 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).

- 42 -