Written by Senior Associate Shaib Y. Rios


Previously, and presumably in effort to dispose of the excessive number of foreclosure cases in Florida, some judges became more relaxed on the Florida Rules of Evidence at trial than they would have been in other cases.  As the foreclosure volume has become more manageable, however, and cases are being reassigned to division judges, more stringent adherence to and understanding of the Rules is once again pivotal in proving your case.

To establish a breach of a real estate contract, the Plaintiff bears the burden of proving by a preponderance of the evidence: the existence of a contract; a breach of that contract and damages resulting from the breach. Sam Rodgers Properties, Inc. v. Chmura, 61 So.3d 432. 437 (Fla. 2d DCA 2011).

The trial witness must be knowledgeable as to the records that he or she is testifying to and be familiar with the general practices and procedures to which he or she is testifying.  The witness’s knowledge can be derived from the review of the company’s records and files.  Progressive Express Ins. Co. v. Camillo, 80 So.3d 394, 399 (Fla. 4th DCA 2012).  A factual basis for the witness’s knowledge need not be set out where he or she is shown to be in a position where he or she would necessarily possess the knowledge.  J.R. Carter v. Cessna Fin. Corp., 498 So.2d 1319, 1321 (Fla. 4th DCA 1987). There is no requirement that the witness be familiar with the actual mechanics of typing the information into the computer system. Wells Fargo Bank N.A. v. Balkissoon, 183 So.3d 1272 (Fla. 4th DCA 2016). There is generally also no requirement that the witness authenticating the business records be the person who actually prepared the business records. Bank of New York Mellon f/k/a The Bank of New York as Trustee for the Certificate Holders Cwalt, Inc. Alternaitve Loan Trust 2006-OA17 Mortgage Pass Through Certificates Series 2006-OA17 v. Johnson; 185 So.3d 594 (Fla. 5th DCA 2016).

The witness is required to be able to lay the proper foundation so that the exhibit can come into evidence. See Maslak v. Wells Fargo Bank N.A., 190 So.3d 656 (Fla. 4th DCA 2016).  In Florida, a business record is admissible at trial, as an exception to hearsay, provided that a qualified witness or custodian of records can testify that the record was made at or near the time the act, transmitted from or by a person with knowledge, if the record is kept in the course of regularly conducted business activities and it is the regular practice of that business to make and keep such a record.   § 90.803(6), Fla. Stat. (2017).

Much ado has recently been made by the defense bar regarding the admission of “judgment figures” at trial, defense counsel arguing that they are improper summaries.  But, computer printouts, like any other business records, are admissible if a witness can testify as to the manner of its preparation, reliability, and trustworthiness.  See e.g. Brown v. State, 113 So. 3d 134 (Fla. 1st DCA 2013).  Data compiled and presented in printouts prepared for trial may even be admissible pursuant to §90.803(6) even though the printouts themselves are not kept in the ordinary course of business.  Jackson v. State, 877 So. 2d 816 (Fla. 4th DCA 2004).  The fact that the information was printed out does not deprive said printouts of its otherwise business records character.

In addition, if there are changes in servicers during the life of the loan, and the current servicer takes custody of the prior servicer’s records and integrates them with their own, the witness must have the requisite knowledge to be able to testify to those boarding procedures for those records to come into evidence. Bank of New York as Trustee for the Note-holders  Cwabs Inc. Asset Backed Notes Series 2006-SD2006-SD4 v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015).

Therefore, it is critical that a representative appearing at trial be both familiar with the business’s practices and procedures about which he or she is testifying and understand how to read and interpret said records in order to lay a proper foundation for admission.  The representative need not be the individual that prepared the business record or precisely identify each group in the business’s structural hierarchy.  Cayea v. CitiMortgage, Inc., 138 So. 3d 1214 (Fla. 4th DCA 2014). In fact, the witness needn’t be familiar with the physical mechanics of entering in the information into the business’s computer system.  Wells Fargo Bank, N.A. v. Balkissoon, 183 So. 3d 1272 (Fla. 4th DCA 2016).  However, the witness should be familiar with the general overall procedures in maintaining said records so that they may be properly admitted during trial.

Based on the foregoing, it is crucial that the witness be prepared for each trial, be familiar with each procedure they will be testifying to, and be able to interpret the records they are presenting so that a precise and clear record is before the court to facilitate the admission of said records at trial.