Sonia J. Sanchez and Hector L. Sanchez v. SunTrust Bank

179 So. 3d 538, 2015 Fla. App. LEXIS 17909, 2015 WL 7568555
CourtDistrict Court of Appeal of Florida
DecidedNovember 25, 2015
Docket4D14-2457
StatusPublished
Cited by5 cases

This text of 179 So. 3d 538 (Sonia J. Sanchez and Hector L. Sanchez v. SunTrust Bank) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sonia J. Sanchez and Hector L. Sanchez v. SunTrust Bank, 179 So. 3d 538, 2015 Fla. App. LEXIS 17909, 2015 WL 7568555 (Fla. Ct. App. 2015).

Opinion

KLINGENSMITH, J.

Sonia J. Sanchez and Hector L. Sanchez (“appellants”) appeal the trial court’s final judgment of foreclosure in favor of Sun-trust Bank (“appellee”). They argue that the trial court abused its discretion by admitting certain documents into evidence under the business records exception. These documents include: a screenshot-of a computerized record keeping system; the payment history; two default letters; the collection notes; and a payoff calculation. We agree with appellants and reverse.

Appellants exécuted a promissory note and mortgage with Suntrust Mortgage LLC (“Suntrust Mortgage”)', a wholly owned subsidiary of appellee and the servi-cer of appellants’ loan, in June 2006. In January 2010 appellee filed its initial complaint, but failed to attach the note. Later, in May 2010, appellee filed the original note which contained an undated, blank endorsement from Suntrust Mortgage.

At trial, appellee called an employee of Suntrust Mortgage to testify on various matters. During his testimony, he was also asked to authenticate several documents intended for admission into evidence as business records. He explained that his job required him to review appellee’s foreclosure files and internal-systems, and that he typically reviewed the note, mortgage, breach letter, and payment history before attending trial. He also testified that he was familiar with three separate record keeping systems utilized by both Suntrust Mortgage and appellee.

The note in this case contained a blank endorsement, and the witness explained that he knew the blank endorsement was placed on the note prior to the filing of the initial complaint because it was appellee’s policy to endorse notes upon receiving them after execution. Reading from the screenshot; which he stated was taken from “the system ... used ,by our vault people to keep track of any original documents,” he testified .that the note was, endorsed in blank three days after the promissory note and mortgage were executed, and over three years before suit was filed.

The trial court admitted the screenshot under the business records exception, over appellants’ objection claiming lack of foundation and hearsay. Subsequently, appel-lee also successfully moved the payment history, default letters, collection notes, and payoff calculation into evidence on the same grounds, over appellants’ same objections.

As we have held in the past:

The business records exception, found in section 90.803(6), Florida Statutes (2013), allows a party to introduce evidence that would noi-mally be inadmissible hearsay if:
(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 i-ecord.

Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1201 (Fla. 4th DCA 2016) (quoting Yisrael v. State, 993 So.2d 952, 956 (Fla.2008)).

In this case, counsel for appellee did not question the witness as to whether each exhibit was “made at or near the time of the event” that it described. Id. (quoting Yisrael, 993 So.2d at 966). Because this element was not established, admitting ap-pellee’s .documents into evidence under the business records exception was error. , . .

Additionally, it does not appear that ap-pellee’s witness was qualified-to lay the *541 proper foundation for the introduction of the screenshot; Regarding who is qualified to testify for the purpose of authenticating business records, we have stated:

[T]he the fact that a'witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record. Yang v. Sebastian Lakes Condo. Ass’n, 123 So.3d 617, 621-22 (Fla. 4th DCA 2013).
To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. Cooper v. State, 45 So.3d 490, 492 (Fla. 4th DCA 2010). “The records custodian or any qualified witness who -has the necessary knowledge to testify as to how the record was made can lay the necessary foundation.” 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)). Stated another way, “the witness just need be well enough acquainted with the activity to provide testimony.” Cayea v. Citi-Mortgage, Inc., 138 So.3d 1214, 1217 (Fla. 4th DCA 2014). “To the extent the individual making the record doés not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by .an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.” Brooks v. State, 918 So.2d 181, 193 (Fla,2005), receded from on other grounds by State v. Sturdivant, 94 So.3d 434 (Fla.2012).

Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So.3d 432, 441 (Fla. 4th DCA 2016).

In the context of a foreclosure action, a representative of a loan servicer testifying at trial is not required to have personal knowledge of the documents being authenticated, but must be familiar with and have knowledge of how the “company’s data.[is] produced,” Glarum v. LaSalle Nat’l Ass’n, 83 So.3d 780, 783 (Fla. 4th DCA 2011); see also Cayea, 138 So.3d at 1217 (“Printouts .of, data prepared for trial may be admitted under the business records exception even if the printouts themselves are not kept in the ordinary course, of business so long as a qualified witness testifies as to. the manner of preparation, reliability, and trustworthiness.”). .If a. representative of a servicing agent, testifying -at trial knows “how the data was produced,” and is “familiar with the bank’s record-keeping system and ha[s] knowledge of how the data was uploaded into the system,” the business records exception is satisfied. Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111, 1112-13 (Fla. 4th DCA 2012).

Although the witness had seen screen-shots like the one entered into evidence before, he did not know anything about the process by which they were created, and admitted that the screenshot was not generated by any of the three servicing systems he was acquainted with. Finally, he stated that he believed .the screenshot accurately. reflected the date the endorsement was placed on the note based entirely upon a conversation he had with another employee he- could, -identify only: by first name: On these facts it cannot be- said that this witness had sufficient knowledge to lay the foundation for the admission , of the. screenshot into evidence under the business records exception. See Ensler v. Aurora Loan Servs., 178 So.3d 95, 98 (Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Household Fin. Corp. III
236 So. 3d 1170 (District Court of Appeal of Florida, 2018)
Michael Maslak v. Wells Fargo Bank, N.A.
190 So. 3d 656 (District Court of Appeal of Florida, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
179 So. 3d 538, 2015 Fla. App. LEXIS 17909, 2015 WL 7568555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sonia-j-sanchez-and-hector-l-sanchez-v-suntrust-bank-fladistctapp-2015.