Financial Services & Banking Industry

The Supreme Court of Florida Affirms the Second DCA’s Definition of a Qualified Witness

Summary:

The Supreme Court of Florida gave additional guidance in foreclosure trial proceedings by affirming the Second District Court of Appeal’s Jackson decision. See Jackson v. Household Finance Corp. III, SC18-357, 2020 WL 3580036 (Fla. July 2, 2020). The Second DCA’s Jackson decision answered the question of what constitutes a qualified witness, with personal knowledge, to authenticate business records as an exception to hearsay under Section 90.803(6), Florida Evidence Code. The Supreme Court of Florida approved.

Background:

Household Finance Corp III (HFC III) filed a foreclosure complaint against the homeowner alleging a default under the terms of the note and mortgage. The homeowner did not challenge the default. During trial, HFC III relied on testimony of an HSBC employee for admission of the original note, mortgage, and loan payment history into evidence. In this case, the witness demonstrated the requisite familiarity with the business practices of his company, and he confirmed the presence of each requirement of the business records exception to the hearsay rule under 90.803(6)—no additional details are required to set the “initial foundation.” The burden then shifts to the homeowner to prove HSBC’s business records were untrustworthy, or that they should not be admitted for some other reason. The homeowner failed to meet this burden. The trial court entered judgment in favor of HFC III. On appeal, the Second DCA affirmed, see Jackson v. Household Finance Corp. III, 236 So. 3d 1170 (Fla. 2d DCA 2018), but certified conflict with Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA 2016), the Fourth DCA’s decision making it difficult to get bank records documents into evidence. Florida’s Supreme Court accepted jurisdiction.

The Supreme Court’s Holding:

As a practical matter, the court explained that it is a core function for servicers, or financial institutions, to maintain bank records and keep track of monetary transactions prior to foreclosure. “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.” 2020 WL 3580036, at *7. The business records are, therefore, inherently reliable. That said, the court stated a qualified witness is anyone with personal knowledge of the organization’s regular business practices related to creating and retaining the records at issue. The court advised that personal knowledge will necessarily come from the witness’s training, first-hand experience, or, most likely, a combination of both.

The court held the HSBC employee is a qualified witness because he: (1) demonstrated familiarity with the routine business practices of the company; and (2) worked at the company for over 25 years; and (3) expressly testified the documents met the foundational requirements set forth in Section 90.803(6), by using the language of that statute (or a close approximation of it). This witness also received cross-training between different departments within HSBC, and he personally compared the loan file against the loan documents proffered at trial finding no discrepancies. As the majority opinion states, there is no prior servicer in this case.

However, the sharp dissenting opinion is partially correct: noting the lack of an evidentiary “connection” established “between HFC III and HSBC,” to show merger or a subsidiary-parent relationship, and noting HSBC failed to introduce a servicing agreement into evidence at trial. 2020 WL 3580036, at *11. These facts, however, in no way, vitiate HSBC’s ability to lay the business records foundation for records from its very own company (printed on HSBC’s letterhead or screenshots from HSBC’s system). Instead, this lack of “connection” directly relates to issues about standing to foreclose—not the admissibility of business records. Wright v. JPMorgan Chase Bank, N.A., 169 So. 3d 251, 252 (Fla. 4th DCA 2015) (reversing for lack of standing and finding a parent corporation cannot exercise the rights of the subsidiary corporation; they are separate and distinct entities).

Takeaways:

1. The Jackson opinion includes “approved” direct examination of a witness establishing the business records exception to hearsay during a mortgage foreclosure trial. Use it!!
2. Defense counsel may try to use this opinion to argue that a “qualified witness” is required to work at a company for over 25 years, or work in management, to get records into evidence. Not so! Footnote 3 of this opinion advised that even a new, or entry-level employee, may gain personal knowledge about its company’s routine business practices through training, or cross-training. Even during COVID-19 safety protocols, virtual training is acceptable.
3. This opinion does not involve direct examination of an employee who testified about records from a third-party vendor. The Supreme Court of Florida has yet to decide whether it can accept jurisdiction on that issue. However, training or firsthand experience is still key for the witness to demonstrate personal knowledge in such cases.

For more information on this topic, please contact Latasha Lordes Scott at lscott@bbdglaw.com.