One Bank Witness Cannot Lay the Foundation for Records of Another Business

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One Bank Witness Cannot Lay the Foundation for Records of Another Business

Cross-posted from The Law Offices of Evan M. Rosen

By Evan M. Rosen

We won another foreclosure trial recently based on an unqualified witness.  This was not the first win from this type of issue and hopefully not the last. In a recent case, the business records which the Plaintiff sought to admit through their witness, were primarily business records of other separate entities who were neither parties to the action nor called as witnesses at trial; to wit: EMS, Chase & Aegis. The witness did not even qualify to admit the records of her own employer, SPS.

“A witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” FLA. STAT. §90.604 (emphasis added).  “Testimony must be based on matters perceived by the senses of the witness.”  C. Ehrhardt, Florida Evidence §604.1 (2014  Edition). Additionally, when introducing the business records of a company, which are hearsay, Plaintiff must meet the requirements of the business records exception in Florida Statute §90.803(6). Business records may be admitted, by a records custodian or other qualified witness, if the proponent of the evidence demonstrates the following: (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). A business record may not be admitted into evidence by someone who is not a records custodian or other qualified witness. See Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988); Pickrell v. State, 301 So. 2d 473, 474 (Fla. 2d DCA 1974).

Because the business records exception requires personal knowledge, it is widely accepted that “[n]ormally, a record custodian of one business cannot lay a foundation for business records of a second business, even in possession of the first business because the witness would not have personal knowledge of how the second business kept it[s] records and could not testify to the foundation requirements.” C. Ehrhardt, Florida Evidence §803.6 (2014 Edition).

This principle has been affirmed numerous times, but most recently by the First District Court of Appeal. Hunter v. Aurora Loan Services, LLC, 137 So. 3d 570 (Fla. 1st DCA 2014). In Hunter, a mortgage foreclosure action, the plaintiff attempted to lay the business records exception for admitting a loan history through an employee of its current loan servicer, Rushmore. Id. The loan history included transactions from a prior loan servicer, MortgageIT, who was not in court to testify as to their records. Id. The employee for Rushmore admitted he did not and had never worked for MortgageIT but that he had approximately 15 years of experience performing various duties in the residential mortgage industry. Id. He testified that based on his dealings, he knew that:

“MortgageIT’s business practice, upon the sale of a loan and mortgage, was to send electronic versions of the pertinent documents to the new owner, determine a post-sale “transfer date” on which loan servicing would transfer from its servicer to the new owner’s servicer, and retain possession of the original note and mortgage documents until the transaction was fully completed. According to Mr. Martin, this procedure is standard across the mortgage industry.”

Id. at 1. The First District Court stated that “[w]hile it is not necessary to call the individual who prepared the document, the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation.” Id. at 2. Based on the testimony, the Court held that the witness failed to establish the necessary foundation for admitting the loan history under the business records exception because the witness was neither a current nor former employee of the prior servicer and otherwise lacked personal knowledge of the prior servicer’s record keeping procedure. Id. at 3. The Court went on to say that:

“Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgageIT regularly made such records, or, indeed, whether the records belonged to MortgageIT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing.”

Id.

In this recent case, the witness could not have personal knowledge of the procedure for how records are created and kept by the three prior servicers in order to satisfy the business records exception. We have a very detailed and ever evolving lengthy cross examination on how we highlight this issue.  For the benefit of our clients, we’d rather not post the exchange from this case on this point.

Ultimately, in accordance with the requirements of Florida Statutes §90.803(6) and §90.604, and the interpretation of said statutes by the appellate courts of Florida, we argued it would be reversible error to allow Plaintiff’s witness to bypass the hearsay rules and admit business records which quite obviously were created by businesses other than SPS, and for which the Plaintiff’s sole witness had no suitable involvement to speak to how those records are made and kept. Furthermore, this SPS witness was not a record custodian nor was she well enough acquainted with the process of making and keeping loan histories to be considered an “other qualified witness” for the limited SPS records before the Court. The same was true for the acceleration letter. Once these documents are excluded from evidence, the Plaintiff fails to meet its prima facie burden. Therefore, the only proper remedy is to grant a timely motion for involuntary dismissal.

Court: CASE DISMISSED!

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If you are in Florida and are looking for help with debt, foreclosure, real estate or want more information about bankruptcy law, call us at (855) 55-ROSEN or fill out our online form for a FREE CONSULTATION. Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you!

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4closureFraud.org

Comments
15 Responses to “One Bank Witness Cannot Lay the Foundation for Records of Another Business”
  1. concerned21 says:

    We are victims of an illegal foreclosure and MGL ch 244 sec 14 was ignored which is an automatic DEFENSE! The UNETHICAL JUDGE ignored the rules of law and his oath. Our lawyer was too afraid to hold the Judges feet to the fire after the UNETHICAL JUDGMENT! He was afraid of ruining his future cases. The Preponderance of Evidence we have will blow your mind!

  2. Alabama John says:

    Sue them and let a jury of YOUR peers decide if what they did was right or wrong. If wrong, collect damages and buy two or three new houses.
    Good Luck!
    Be aggressive, not a victim that takes what was done to you and only complains, kick their a-s.

  3. DAVID PETERS says:

    We are in foreclosure in FL and it has been going on for six years and this is actually the second time they filed a foreclosure yet when I contacted Mr Rosen I never herd back. Also I don’t really like how these stories are posted and then he goes on to say well I can’t give details. To me it seems like it is just a free advertisement for this guy.

    I am going to try to contact him again soon because we have all the same players with our mortgage, Fairbanks/SPS, EMC, Chase and now SPS again.

    So we shall see if he truly wants to help people or just wants to be paid.

    I cannot afford the thousands of dollars he is asking to represent me and my mom so I am hoping he will help.

  4. 4evrMoi says:

    Can anyone please explain “why” the SUCCESES and “CASES WON” are only originating in FLORIDA? Is there ANY LAW OFFICE who can help me get my home back, in Lancaster, OH???

    • jay says:

      @4evrMoi: I can get you in touch with the right law firm in Columbus.

    • Ken says:

      Because he is an attorney in FL

    • louise says:

      4evrmoi, look at Schwartzwald in Ohio: FEDERAL HOME LOAN MORTGAGE CORPORATION, APPELLEE, v.
      SCHWARTZWALD ET AL., APPELLANTS.
      [Cite as Fed. Home Loan Mtge. Corp. v. Schwartzwald,
      134 Ohio St.3d 13, 2012-Ohio-5017.]

      • 4evrMoi says:

        “Thanks” everyone! =)

      • 4evrMoi says:

        Unfortunately, Louise, this is a “victory” because it happened BEFORE the judgment and the Fed Home Loan Mtge. Corp taking possession. My home was literally STOLEN from me and I have substantiating proof! I tried unsuccessfully for three solid years trying to save my home, but kept being informed, there was a “law” as to the “why” the mortgage company (CitiMortgage handling it for Freddie Mac) would NOT ACCEPT my offers for paying off my EX-husband’s refinance – HE filed for bankruptcy! They (Fed Home Loan Mtge Corp/Freddie Mac) CHANGED the County Auditor’s records to make it appear that I was NOT a co-owner of the property for 15 years!! I also had to sign the re-finance so that my Ex would get his loan, (we are divorced, but shared the property), yet CitiMortgage kept saying I did NOT! One year AFTER they successfully STOLE my home, they actually said via telephone, that “IF I was SERIOUS about saving my home, all my Ex had to do was to ‘quit-claim’ the property to me”!! OMG!! I kept asking this question as to “why” can’t he do this, throughout the three year nightmare! NOW I’m listening to this callous remark in disbelief as this Freddie Mac person states this in a telephone conversation one year AFTER they stole it from me! I just want to cry!

        So … anyone who knows anything about this type FRAUD, can you please tell me WHO I can contact, or is it too late? That was 2011. They kept saying they were NOT INTERESTED in my offers – they were ONLY interested in RE-SELLING the property for FAIR MARKET VALUE and they turned around and sold it to the current owners for $5000 LESS than THEY bought it back for at the Sheriff’s Sale! We owed $68,132.51 which I was willing to pay (even though it was my EX who created the debt and used the money!) if they would (please) RESTRUCTURE that amount into a NEW loan at current interest for 30 years – this was the only way I could afford the mortgage as MY income is that of Disability. What was wrong with that offer??? The new “owners” bought it for $55,000!!!

        Q: “FAIR market value”???

      • louise says:

        Please go the website for the blog called livinglies and read everything you can Also check out MSFraud.org. You need to get educated.

      • 4evrMoi says:

        Have done as you suggest, Louise – much. much to read; clicking on some links get you to a “no longer available” page. But, I will pursue this … I’ve never given up hope! =|

      • louise says:

        Limit yourself to the last four years or so. This krap has been going on for a long time. Also, check out Catherine Austin Fitts on mortgage fraud, just google it.

    • jay says:

      Past cases can be re-opened and re-adjudicated under certain conditions. If you have a contact email post it here and I will send you the contact details privately.

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