During the trial, the witness for the current servicer conceded that she had never visited the prior servicer, never worked for the prior servicer, never spoke to any employee of the prior servicer, and did not have knowledge of how the prior servicer processed payments, kept its payment history, or compiled and stored its records. After Plaintiff rested its case-in-chief, Ensler moved for an involuntary dismissal of the action because she claimed Plaintiff failed to satisfy the requisite elements for the prior servicer documents to be considered admissible under the business records exception in Fla. Stat. § 90.803(6)(a). The trial court denied this motion and ultimately entered judgment in Plaintiff’s favor.

In Sas v. Federal National Mortgage Ass’n., No. 2D14-1003, 2015 WL 3609508 (Fla. 2d DCA June 10, 2015) the appellate court was faced with the issue of whether there was a requirement that the records custodian of the current loan servicer have personal knowledge of the manner in which the prior loan servicer maintained and created its business records in order for the records to be introduced into evidence under section 90.803(6), Fla. Stat. During the hearing on damages before the trial court, the current loan servicer, Seterus, had its records custodian testify that: he was familiar with Seterus’s business practices in making and maintaining business records; the owner of the subject loan, Fannie Mae’s record keeping requirements for mortgage loan servicers; and the mortgage loan servicing industry’s general practices in making and maintaining records. Further, the records custodian testified that the prior servicer’s payment history was audited by Seterus during the boarding process and that the payment history was updated by Seterus as payments were received.

ffidavit of the corporate representative, as well as the attachment. According to the court, the corporate representative is an individual with knowledge as to the records, which speak for themselves, and the insurer’s practice of keeping records. Additionally, the trial court found that the insurer was not required to show prejudice where the insureds breached a conditions precedent to suit, despite policy language to the contrary.Florida’s Fourth District Court of Appeals disagreed with the trial court’s analysis, concluding that the trial court should have disregarded the affidavit and the attached documents. The district court noted that the corporate representative’s knowledge was based upon their review of the insurer’s file and that the individual it serves as a corporate representative in litigation actions for the insurer is not enough to show personal knowledge or competency. A general restating of the elements of the hearsay business records exception is not sufficient. See Fla. Stat. § 90.803(6)(a)-(c).Therefore, further information of the affiant’s knowledge, including their employment, training or experience that would allow them to have personal knowledge of the facts of the claim as well as the practices of the insurer, is needed in order to show the affiant’s knowledge in the context of summary judgment affidavits.

Trial lawyers need to ensure that temporal or circumstantial limitation of stipulations or admissions are a regular part of discovery responses or pre-trial stipulations used in trial proceedings.Frequent litigants like banks and insurers should beware of Fla. Stat. § 90.803(22), regarding former testimony as an exception to the hearsay rule. Though there is some confusing precedent on the issue, the statute creates a hearsay exception for former testimony regardless of the witness’s availability, stating:“FORMER TESTIMONY.—Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403.”Id.

803(6) of the Florida Statutes if the proponent of the evidence demonstrates the following through a records custodian or other qualified person: (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.Weisenberg v. Deutsche Bank Nat. Trust Co., 89 So. 3d 1111, 1112 (Fla. 4th DCA 2012); § 90.803(6)(a), Fla. Stat. In cases where the business records predate the witness's tenure as an employee with the foreclosing plaintiff or servicer, borrower's counsel are examining servicer witnesses on whether the policies and procedures have changed since the inception of the loan. Because the witnesses were not employees during all relevant times, many respond that they are not sure.

Specific Performance: purchaser entitled to seek specific performance against seller for breach of real estate purchase contract where default provision in contract did not limit remedies available to purchaser upon breach–Regents Park Investments, LLC v KAI Properties, Ltd., No. 3D13-1511 (Fla. 3d DCA Nov. 5, 2014) (reversed and remanded).Business Records Exception: current note holder required to authenticate prior note holder’s payment history under section 90.803(6)(a), Fla. Stat., in order to qualify documents as business records at trial. Authentication can be accomplished by producing a certification by prior note holder in accordance with section 90.902(11), Fla. Stat., and/or testimony that current note holder has procedures in place to check accuracy of information received from prior note holder – Holt v Calchas, LLC, No. 4D13-2101 (Fla. 4th DCA Nov. 5, 2014) (affirmed in part, reversed and remanded).