Wells Fargo Bank, N.A. v. Toni Balkissoon, Devi Balkissoon, Toni R. Balkisson, Jr.
183 So. 3d 1272
| Fla. Dist. Ct. App. | 2016Background
- Wells Fargo (plaintiff/appellant) prosecuted a mortgage foreclosure against Toni and Devi Balkissoon; at trial the court involuntarily dismissed Wells Fargo’s case after excluding key documents.
- Bank of America employee Luis Reyes testified as to Bank of America’s servicing practices, the AS400 loan-servicing system, how payments are posted and how payment histories are kept. Reyes identified the borrowers’ payment history and a notice of default/acceleration.
- Defense counsel objected to both the payment history and the notice on foundation grounds; on voir dire Reyes conceded he did not personally perform the keystroke posting and lacked detailed knowledge of a vendor’s internal procedures.
- The trial court excluded both documents, relying on prior Fourth DCA decisions (Yang and Glarum), and granted the Balkissoons’ motion for involuntary dismissal because Wells Fargo could not establish default.
- The Fourth District reversed, holding Reyes had sufficient familiarity with Bank of America’s practices and the AS400 system to authenticate the records under the business-records exception, so exclusion was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the payment history was admissible under the business‑records exception | Reyes’ testimony established Bank of America’s regular practices and that records were made contemporaneously, so foundation satisfied | Reyes lacked hands‑on posting experience and could not explain the mechanics, so foundation inadequate | Payment history admissible; Reyes was sufficiently familiar with procedures and accuracy to lay foundation |
| Whether the default/acceleration notice was admissible as a business record | Bank of America transmitted default data nightly to vendor Waltz which generated the notice; Bank kept copies — foundation satisfied | Reyes lacked knowledge of Waltz’s internal procedures and thus could not authenticate the notice | Notice admissible; Reyes’ testimony about transmission, template use, and Bank’s recordkeeping provided adequate foundation |
| Whether exclusion of the documents warranted involuntary dismissal | Excluding key records prevented Wells Fargo from proving default and damages | Exclusion was proper, leaving no prima facie case | Exclusion was erroneous; reversal and remand for further proceedings |
| Standard for foundation when witness is not the record preparer | A witness familiar with the business activity and recordkeeping system may authenticate records | The witness must know exact mechanics or be the record preparer | Witness need not have performed the specific data entry; sufficient familiarity with systems/procedures suffices |
Key Cases Cited
- Glarum v. LaSalle Bank Nat’l Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011) (affiant’s lack of knowledge about how payment‑history data was produced rendered affidavit inadmissible)
- Yang v. Sebastian Lakes Condominium Ass’n, 123 So. 3d 617 (Fla. 4th DCA 2013) (witness unfamiliar with prior manager’s practices failed to lay foundation for ledgers)
- Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1111 (Fla. 4th DCA 2012) (witness who knew how data was produced laid sufficient foundation)
- Cayea v. CitiMortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014) (witness need not have prepared records personally; familiarity with business practice and systems can authenticate records)
- Peuguero v. Bank of America, N.A., 169 So. 3d 1198 (Fla. 4th DCA 2015) (bank witness’s testimony about procedures for inputting payment information sufficed to admit records)