Jackson v. Household Fin. Corp. III
236 So. 3d 1170
| Fla. Dist. Ct. App. | 2018Background
- Cynthia and Thomas Jackson appealed a final mortgage foreclosure judgment entered after a bench trial.
- Plaintiff below (Household Finance Corp III, now part of HSBC) sought admission of business records showing the Jacksons' default.
- HSBC offered live testimony from David Birsh, an Assistant VP of HSBC, to establish the business-records foundation.
- Birsh testified he was familiar with HSBC’s recordkeeping, that records were made at/near the events by persons with knowledge, and were kept in the ordinary course of business; on cross he said his familiarity came from 25 years managing various departments.
- The Jacksons argued Birsh’s testimony consisted only of reciting the statutory “magic words” and lacked personal knowledge of how the records were created; they relied on the Fourth District’s decision in Maslak.
- The Second District affirmed the foreclosure, holding Birsh’s testimony met the proponent’s initial foundation burden and the Jacksons failed to show the records were untrustworthy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Birsh’s testimony laid a proper foundation for admission of business records under the business-records hearsay exception | Birsh’s testimony established the four statutory elements (made at/near time, by persons with knowledge, kept in ordinary course, regular practice) | Testimony was only boilerplate “magic words” and lacked proof of personal knowledge of the recordkeeping systems/processes | Held: testimony sufficient to meet proponent’s initial burden; opposing party failed to prove untrustworthiness; records admitted |
| Proper allocation of burdens when using a custodian’s live testimony to lay foundation | Live testimony satisfying elements is enough; any further doubt shifts to opponent to impeach trustworthiness | Proponent must provide more detailed proof of how records were created and maintained | Held: once proponent elicits testimony satisfying elements, burden shifts to opponent to show lack of trustworthiness; court rejects a heavier initial burden |
| Whether Maslak (4th DCA) requires more detailed foundation than reciting statutory elements | Proponent argued Maslak imposed an incorrect, overly exacting standard | Jacksons relied on Maslak to argue recitation is insufficient | Held: certifies conflict with Maslak; declines to follow Maslak’s stricter approach |
| Admissibility standard for computerized/business records | A witness need not be the recordmaker but must have knowledge of the elements; for computer records, witness should know the recordkeeping system | Opponent argued Birsh lacked system-specific knowledge required for computerized records | Held: Birsh’s executive-level familiarity sufficed; opponent failed to show lack of knowledge |
Key Cases Cited
- Channell v. Deutsche Bank Nat'l Tr. Co., 173 So.3d 1017 (Fla. 2d DCA 2015) (sets forth business-records exception elements and custodian-testimony principles)
- Yisrael v. State, 993 So.2d 952 (Fla. 2008) (identifies three methods to lay foundation: custodian testimony, certification/declaration, or stipulation)
- Love v. Garcia, 634 So.2d 158 (Fla. 1994) (once proponent meets predicate, burden shifts to opponent to prove records untrustworthy)
- Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA 1993) (testimony comparable to custodial testimony here was sufficient; warns against overly exacting standards)
- Maslak v. Wells Fargo Bank, N.A., 190 So.3d 656 (Fla. 4th DCA 2016) (held similar “magic words” testimony insufficient; conflict certified)
- Sanchez v. Suntrust Bank, 179 So.3d 538 (Fla. 4th DCA 2015) (reversed admission where witness lacked knowledge of how records were created)