Monday, August 17, 2015

Real Property, Probate and Trust Law: Trending Litigation - What Evidence Are Judges Really Requiring?

By Jennifer Lima-Smith

Presenting Florida foreclosure case evidence should be straightforward. However, some of Florida’s more litigious circuits raise the bar for proving a foreclosure case. Evidence requirements routinely include the note, mortgage, payment history, breach letter, assignment of mortgage, affidavits, screen shots of acquisitions and default letters, power of attorney, certificate(s) of merger, corporate name change(s), and information about the platform system used to track payment(s).

To quote The Wizard of Oz, “We’re not in Kansas anymore, Dorothy."

For loans transferred from one servicer to another during the case, the witness should know the chain of ownership (origination to date of trial) and articulate specific steps to verify information. Section 90.803(6), Florida Statutes (2014), “provides a hearsay exception for records of regularly conducted business activity.” A.S. v. State, 91 So. 3d 270, 271 (Fla. 4th DCA 2012). Businesses rely upon their records “in the conduct of [their] daily affairs” and “customarily check [them] for correctness during the course of the business activities.” Charles W. Ehrhardt, Florida Evidence § 803.6 (2014 ed.).

Personal knowledge is crucial for establishing the reliability and accuracy of prior (servicer) records. Testimony should establish: (1) the proffered document is (was) a true and accurate representation, (2) the proffered document is (was) kept during the course of regularly conducted activities by a person with knowledge of the event or activity, (3) the person making the record had a duty to accurately compile the information, and (4) it is the regular practice to make such a record. Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).

“First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements.” Yisrael, 993 So. 2d at 956 (citing § 90.803(6) (a), Fla. Stat. (2004)). “Second, the parties may stipulate to the admissibility of a document as a business record.” Id. “Third and finally … the proponent has been able to establish the business-records predicate through a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11), Florida Statutes (2004).” Id. at 957.

Using the first option, “it is not necessary to call the individual who prepared the document.” However, “the witness through whom [the] document is being offered must be able to show each of the requirements for establishing a proper foundation.” Mazine v. M & I Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011) (citation omitted); Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014);    Cayea v. CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014). Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015), sheds some guidance and seems to indicate familiarity with specific record-keeping systems (past and present) is needed. In Bank of New York v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015), the court reaffirmed the introduction of a payment history.

To ensure best practices, always consult with your foreclosure and litigation counsel.