CITIMORTGAGE, INC., APPELLANT,
v.
BARBRA A. HOSKINSON, ET AL., APPELLEES
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In a mortgage foreclosure action, the Fifth District Court of Appeal reversed an involuntary dismissal and judgment for the mortgagors because the trial court erred in excluding a notice of breach and acceleration letter on hearsay grounds. The appellate court held that the mortgage company's witness was properly qualified to lay foundation for the business records exception and that sufficient evidence supported mailing of the required notice.
The trial court erred in excluding the letter because the witness was properly qualified to lay foundation for the business records exception under Florida Statute § 90.803(6)(a). A qualified witness need only be 'well enough acquainted with the activity to give the testimony,' and the witness met this standard. Additionally, sufficient evidence established a rebuttable presumption of mailing under § 90.406 based on testimony of the organization's routine practice, which was not rebutted by the mortgagors.
[1] A witness qualified to testify about how a document was made may lay the foundation for its admission under the business records exception to the hearsay rule.
[2] A witness is sufficiently acquainted with a business activity to testify about a document's creation if they have observed the entire process from preparation to delivery…
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Join FLexlaw to unlock all legal intelligence“Any qualified witness who has the necessary knowledge to testify as to how a document was made may lay the foundation to bring the document within the business records exception.”
Establishes the standard for qualifying a witness to authenticate business records under the hearsay exception
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Join FLexlaw to unlock all legal intelligenceCitiMortgage sought to foreclose a mortgage at a nonjury trial. The company presented a witness who testified about its customer service department's …
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In this mortgage foreclosure action, we review the propriety of an involuntary dismissal and final judgment entered in favor of Appellees, the mortgagors. Because the lower court based the dismissal on an incorrect evidentiary ruling, we reverse.
At a nonjury trial, Appellant presented one witness, through whom it sought to introduce into evidence various documents, including a notice of breach and acceleration letter. Sending such a letter was a condition precedent to acceleration of the note and foreclosure of the mortgage. Appellees objected to introduction of the letter on hearsay grounds, arguing that the witness was not qualified to lay the necessary foundation to bring the letter within the business records exception to the hearsay rule. § 90.803(6)(a), Fla. Stat. (2014). The trial court agreed.
Any qualified witness who has the necessary knowledge to testify as to how a document was made may lay the foundation to bring the document within the business records exception. Twilegar v. State, 42 So.3d 177, 199 (Fla.2010). All that is required is that the witness be “‘well enough acquainted with the activity to give the testimony.’ ” Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 213 (Fla. 5th DCA 2015) (quoting Alexander v. Allstate Ins. Co., 388 So.2d 592, 593 (Fla. 5th DCA 1980)). Appellant’s witness met this criteria. She testified that Appellant’s customer service department generates breach letters when mortgage payments become delinquent. The letters are delivered to Appellant’s mail room on the day they are prepared and are collected by the postal service that day or the following day. Although the witness had never worked in the customer service department, she had trained side-by-side with someone in that department and had observed the entire process from generating the breach letters to delivering them to the mailroom. As such, she was qualified to authenticate the letter as a business record.
We further conclude that Appellant offered sufficient evidence to show that the letter was mailed. A rebuttable presumption of mailing can be shown through evidence of an organization’s routine practice. § 90.406, Fla. Stat. (2014); see Brown v. Giffen Indus., Inc., 281 So.2d 897, 899-900 (Fla.1973). The witness testified to her personal knowledge of Appellant’s general practice of delivering breach letters to the mail room, where they are collected by the postal service. Although the witness did not see the postal carrier collect the mail on the date in question, she had seen the carrier collect the mail at other times. This testimony created a rebuttable pre*193sumption that the letter was mailed in accordance with Appellant’s general practice. Appellees did not rebut that presumption.
REVERSED AND REMANDED.
TORPY, COHEN and LAMBERT, JJ., concur.
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Allen v. Wilmington Tr., 216 So. 3d 685 (Fla. 2d DCA 2017)…nt to establish EMC’s routine business practices, Evidence of a company’s routine business practices under section 90.406, Florida Statutes (2014), may be sufficient to establish a rebuttable presumption of mailing. CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016). However, the witness must have personal knowledge of the company’s general practice in mailing letters. Id. Coffron, who was employed by the successor servicer, admitted that she was not familiar with its predecessor’s mail…
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Edmonds v. U.S. Bank Nat'l Ass'n, 215 So. 3d 628 (Fla. 2d DCA 2017)…e may give rise to a rebuttable presumption of mailing, but “the witness must have personal knowledge of the company’s general practice in mailing letters.” Allen, slip op. at 4; see also § 90.406, Fla. Stat. (2014); CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016) (recognizing that the witness had personal knowledge of the plaintiff company’s mailing practices). [*631] White’s testimony reflected no knowledge of JP Morgan’s mailing procedures or practices, and he was never employed by…
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Isaiah L. Spencer & Shatika L. Spencer v. Ditech Fin., 242 So. 3d 1189 (Fla. 2d DCA 2018)…—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company's routine practice for mailing letters. See id.; Edmonds, 215 So. 3d at 630; see also CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Twilegar v. State, 42 So. 3d 177 (Fla. 2010)
- Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla. 1973)
- Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015)
- Alexander v. Allstate Ins. Co., 388 So. 2d 592 (Fla. 5th DCA 1980)