Florida Supreme Court Sets Standard for Authenticating Loan Officer Business Records | Burr & Forman

On July 2, 2020, the Florida Supreme Court released its decision Jackson v. Household Finance Corporation III, et al., SC18-357, 2020 WL 3580036, and provided new guidance for authenticating recordings under the commercial recordings exception to the hearsay rule. The issue was whether an employee testifying had properly authenticated business records maintained by HSBC in relation to a mortgage account. The Florida Supreme Court ruling in favor of the lender resolves a division of authority in Florida over the quantum of evidence needed to access the Florida hearsay exception in business cases.

Section 90.803 (6) sets out Florida’s requirements for establishing a hearsay exception for business records. The Florida Supreme Court reiterated the four elements of the business documents exception: (1) that the document was established at or around the time of the event, (2) that it was created by or from information transmitted by a person having knowledge, (3) that it was kept in the ordinary course of a regularly carried out commercial activity, and (4) that it was a common practice of that company to make such a record.

In Jackson, the Respondent disputed whether or not the necessary prior testimony had been produced as to the elements, and whether the witness had the personal knowledge required to establish these elements. Finding that the witness’s testimony provided an adequate basis for the records in question, the Florida Supreme Court ruled:

Here, the promoter presented the testimony of a twenty-five-year-old employee and executive vice-president who stated that he was “familiar with the business practices of the company” and that it was the “business practice regular “company” to record deeds, transactions, payments, communications, escrow account activity, disbursements, events and analyzes relating to the mortgage account. ‘ He further stated that the documents met each of the other basic requirements set out in subsection 90.803 (6), using the language of the law or an approximation thereof, as detailed above. No additional basis is required by law or by any case of this Court, and we reject the idea that the witness must also detail the basis of his knowledge of the relevant business practices of the company or give additional details of those practices. as part of the original foundation because that would be inconsistent with the plain language of the law.

On the contrary, once the promoter lays the foundation for admitting the documents set out in the law and reflected in our case law, “the onus is on the opposing party to prove that the documents are not trustworthy” or that they should not be admitted for some other reason. “

Identifier. (internal citations omitted). The Florida Supreme Court reiterated that the person authenticating business documents to be used in court proceedings does not need to be the person who created the document and does not need to be present when the document is created. document. Instead, “a qualified witness is therefore anyone with personal knowledge of the usual business practices of the organization regarding the creation and maintenance of the record (s) in question. This knowledge will necessarily come from the training or experience of the witness, or, most likely, from a combination of the two. ” Identifier. (internal citations omitted).

Further, with respect to the witness’s competence, the Florida Supreme Court concluded that the witness’s testimony on cross-examination did not reveal any “disqualifying insufficiency in his relevant knowledge”. Identifier. More specifically, the Court observed:

“[The witness] explained that during his twenty-five years with the company he had “been in different departments” and “managed various departments” so that he had “essentially become very familiar with a lot of people. different questions “. He also mentioned “cross training and what have you”. In addition, in cross-examination, [the witness] said he first familiarized himself with the Jackson file and documents “a few months ago”. [The witness] explained that “on [his] examination of documents, “he personally” entered [HSBC’s] imaging system and looked at those documents and compared them to those printed today. ‘ [The witness] stated that “they have not been changed” and that “[t]hey are the same ones that have been imaged in our system from the start. ‘ These responses demonstrate a working knowledge of relevant HSBC record keeping practices and system.

The Florida Supreme Court expressly rejected the opinions of lower courts, such as the Florida Fourth District Court of Appeals, which had considered a necessary prerequisite for the admission of testimony from business cases beyond the elements of exception, such as requiring a testimonial showing details knowledge of the ‘procedures for entering payment information into their systems and how the payment history was produced[.]” See, for example, Maslack v. Wells Fargo Bank, NA, 190 So. 3d 656 (Fla. 4th DCA 2016). The Florida Supreme Court also rejected the idea that a witness who testifies to the elements of the business records exception in verbatim terms in the language of the law offers somehow less evidence than a witness whose testimony uses more familiar phraseology when giving testimony. Identifier.

The Florida Supreme Court’s rationale for not requiring more testimony to authenticate business records is twofold: First, the Court recognized that the statutory elements of the business records exception are just that, the elements, and to demand more would be both unfaithful and needlessly time consuming and costly given that “the documents are what they claim to be in 99 out of 100 cases”, including mortgage foreclosure actions. Identifier. In other words, the Florida Supreme Court has recognized that the process of authenticating business records should be straightforward and that the burden of proof to authenticate a document is light. Identifier. Finally, the Court recognized that in the rare cases where a fraud is perpetrated, nothing prevents the opposing party from bringing the evidence to show it to the Court. For example, in Jackson, although he appealed to the Florida Supreme Court, the defendant did not even challenge the accuracy of the documents in question – only if more fundamental evidence should have been required to admit the document into evidence.

The Florida Supreme Court’s common sense approach should go against what has become a preferred tactic to delay mortgage foreclosure and other financial services litigation – from unnecessary hearsay objections to properly authenticated business records. The Florida Supreme Court decision also provides a useful section for lenders, loan officers and any other business involved in litigation on how to properly authenticate business records in evidence and the nature of knowledge that Witnesses must possess to survive cross-examination if the basis of the business records authentication testimony is in dispute.

The Florida Supreme Court’s opinion can be found here.

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About Darnell Yu

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