238 So. 3d 438
Fla. Dist. Ct. App. 5th Dist.2018Background
- Deutsche Bank (trustee) sued in 2015 to foreclose the Merceds’ residential mortgage; partial summary judgment (unchallenged) found Deutsche Bank had standing to foreclose.
- Remaining issues tried non-jury: compliance with conditions precedent and amount due on the note.
- Deutsche Bank called Maria (Thomas) — a 24-year senior default litigation specialist for National City/PNC — to authenticate servicer records and a loan modification.
- Thomas testified about her familiarity with the Merceds’ account, PNC/National City recordkeeping systems, and that the documents were created and maintained in the regular course of business.
- The Merceds moved to exclude a limited power of attorney for lack of foundation; the court excluded that document as not qualifying under the business-records hearsay exception and then struck Thomas as a witness.
- The trial court entered involuntary dismissal in favor of the Merceds; the appellate court reversed and remanded for a new trial, finding the court abused its discretion by striking Deutsche Bank’s witness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a witness must have contractual authority to testify to lay foundation for business records under the hearsay exception | Deutsche Bank: witness need only have personal knowledge of the business and records; contractual authorization not required | Merceds: counsel challenged foundation for certain documents (power of attorney), contending lack of proper authorization/foundation | Court: No contractual-authority requirement; a qualified witness with personal knowledge can authenticate business records under §90.803(6) — striking the witness was an abuse of discretion |
| Admissibility of the excluded power of attorney under business-records exception | Deutsche Bank: Thomas’s testimony established the records’ trustworthiness and foundation | Merceds: the power of attorney lacked foundation and so was inadmissible hearsay | Court: Power of attorney excluded; but its exclusion did not justify striking Thomas — her testimony otherwise laid sufficient foundation for other business records |
| Whether exclusion/striking of the sole witness was harmless error | Deutsche Bank: exclusion prevented introduction of dispositive evidence and violated right to be heard | Merceds: exclusion was harmless | Court: Not harmless—striking Deutsche Bank’s only witness denied meaningful opportunity to present evidence; reversal and new trial required |
| Relevance of excluded power of attorney to standing/foreclosure | Deutsche Bank: N/A at trial because Deutsche Bank (not PNC) was foreclosing | Merceds: argued relevance to servicer authority | Court: Power of attorney would bear on servicer standing, but PNC was not the foreclosing party here; exclusion did not negate Thomas’s ability to authenticate records |
Key Cases Cited
- U.S. Bank Nat'l Ass'n v. Clarke, 192 So.3d 620 (Fla. 4th DCA 2016) (qualified witness need not have contractual authority to authenticate business records)
- Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209 (Fla. 5th DCA 2015) (business-records exception can be satisfied by records custodian or other qualified witness; witness need not have prepared the records)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (elements required to admit business records under the hearsay exception)
- Bank of N.Y. v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015) (witness with demonstrated knowledge of recordkeeping can lay foundation for payment history)
- Dobson v. U.S. Bank Nat'l Ass'n, 217 So.3d 1173 (Fla. 5th DCA 2017) (due process includes right to introduce evidence and call witnesses at meaningful time)
- Russell v. Aurora Loan Servs., 163 So.3d 639 (Fla. 2d DCA 2015) (limited power of attorney may be insufficient to establish servicer’s standing to foreclose)