Bank of New York v. Andrew Calloway
157 So. 3d 1064
| Fla. Dist. Ct. App. | 2015Background
- Bank of New York sought foreclosure; trial court dismissed for improper foundation of prior servicer records
- Knowles testified as Resurgent records custodian to lay business-record predicate for payment history
- Payment history and related documents derived from Bank of America records transferred to Resurgent
- Knowles admitted she had no personal knowledge of Bank of America’s record-keeping processes
- Court found Knowles’ foundation insufficient and granted involuntary dismissal; on appeal court reversed and remanded for new trial
- Court held that Resurgent’s due-diligence and transfer of records sufficed to establish trustworthiness for business-record admission
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the business-record predicate was properly established | Bank of New York | Borrower | Yes; predicate satisfied via Resurgent’s review and transfer of records |
| Whether testimony from Knowles established trustworthiness | Bank of New York | Borrower | Yes; trustworthiness shown by processing and review of records |
| Whether prior servicer records can be admitted through a successor’s records | Bank of New York | Borrower | Remand for new trial; records admissible under proper foundation |
Key Cases Cited
- Glarum v. La Salle Bank Nat'l Ass'n, 83 So. 3d 780 (Fla. 4th DCA 2011) (admissibility limits when a serving agent has no knowledge of data production)
- WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005) (records properly admitted where successor verifies accuracy of third-party data)
- Yisrael v. State, 993 So. 2d 952 (Fla. 4th DCA 2008) (outlines the four-part foundation for business records)
- Holt v. Aurora Loan Servs., LLC, 137 So. 3d 570 (Fla. 1st DCA 2014) (supports that a witness need not be the record creator; must show foundation)