business records exception in Florida

2021Compare Yisrael, 993 So. 2d at 956 (“To secure admissibility under [the business records exception], the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record.”) with State v. Love, 691 So. 2d 620, 621 (Fla. 5th DCA 1997) (“Section 90.901. . . requires authentication or identification of evidence as a condition precedent to its admissi

2015In order to be admissible under the business records exception, the movant must establish that “(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that busi ness to make such a record.” Yisrael v. State, 993 So.2d 952, 956 (Fla.2008) (citing Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999)).

2026“While the business records exception to the hearsay rule allows the admission of a memorandum, report, record, or data compilation, it does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.” Helton v. Bank of Am., N.A., 187 So. 3d 245, 247 (Fla. 5th DCA 2016) (quoting Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998)).

2025Co., 337 So. 3d 889 , 891–92 (Fla. 2d DCA 2022) (“[W]hile the business-records exception . . . allows the admission of ‘[a] memorandum, report, record, or data compilation,’ it does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.” (quoting Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998))).

2026Thereafter, the business records are admitted into evidence.”); Bank of N.Y. v. Calloway, 157 So. 3d 1064, 1071 (Fla. 4th DCA 2015) (“Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been ‘made’ by the successor business, such that both records constitute the successor business’s singular ‘business record.’ However, since records crafted by a separate business lack the hallmarks of reliability inherent in a business’s self-generated records, proponents must demonstrate not only that ‘the other 2

2020“The rationale behind the business records exception is that such documents have a high degree of reliability because businesses have incentives to keep accurate records.” Bank of New York v. Calloway, 157 So. 3d 1064, 1070 (Fla. 4th DCA 2015) (quoting Timberlake Constr.

2018Somewhat similarly, in Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015), the court found a witness’s entry of records created by a prior servicer proper “so long as all the requirements of the business records exception are satisfied, the witness can testify that the successor business relies upon those records, and the circumstances indicate the records are trustworthy.” Nationstar Mortg. at 216; see also Le v. U.S. Bank, 165 So. 3d 776, 778 (Fla. 5th DCA 2015) (holding that a witness properly laid the foundation for a prior servicer’s records because the witness “testif

2018Under the business records exception, a party must present the business record via one of the following: “(1) testimony of the records custodian or other qualified witness, pursuant to section 90.803(6)(a), Florida Statutes; (2) stipulation; or (3) certification or declaration . . . . [T]he authenticating witness need not be ‘the person who actually prepared the business records.’” Nationstar Mortg., LLC. v. Berdecia, 169 So. 3d 209, 213 (Fla. 5th DCA 2015) (citations omitted).

2016The business records exception to the hearsay rule allows a party to offer such records into evidence after eliciting testimony from.“a person with knowledge, if kept in -the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such ... record ... unless the sources of information or other circumstances show a lack of trustworthiness.” § 90.803(6)(a), Fla. Stat. “As a general rule, ‘the authenticating witness need not be the person who actually prepared the business records.’” Nationstar Mortg., LLC v. Berdecia, 169 So.3d 209, 2

2015In the context of a foreclosure action, a representative of a loan servicer testifying at trial is not required to have personal knowledge of the documents being authenticated, but must be familiar with and have knowledge of how the “company’s data.[is] produced,” Glarum v. LaSalle Nat’l Ass’n, 83 So.3d 780 , 783 (Fla. 4th DCA 2011); see also Cayea, 138 So.3d at 1217 (“Printouts .of, data prepared for trial may be admitted under the business records exception even if the printouts themselves are not kept in the ordinary course, of business so long as a qualified witness testifies as to. the ma

2020Again, we disagree and hold that a qualified witness who has “testified as to each element of the business records exception for the admission of” a business record, id., has laid the proper predicate for admission of the document such that the document should be admitted unless the opponent establishes it to be untrustworthy, Love, 634 So. 2d at 160 ; Jackson, 236 So. 3d at 1172 .

2007In addition, although medical records are admissible under the business records exception to the hearsay rule, see Love v. Garcia, 634 So.2d 158, 159-60 (Fla.1994), a judge should exclude these records when it is shown that the records are not trustworthy.

2018Somewhat similarly, in Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015), the court found a witness’s entry of records created by a prior servicer proper “so long as all the requirements of the business records exception are satisfied, the witness can testify that the successor business relies upon those records, and the circumstances indicate the records are trustworthy.” Id. at 216 ; see also Le v. U.S. Bank, 165 So. 3d 776, 778 (Fla. 5th DCA 2015) (holding that a witness properly laid the foundation for a prior servicer’s records because the witness “testified that she

2018Somewhat similarly, in Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015), the court found a witness’s entry of records created by a prior servicer proper “so long as all the requirements of the business records exception are satisfied, the witness can testify that the successor business relies upon those records, and the circumstances indicate the records are trustworthy.” Nationstar Mortg. at 216; see also Le v. U.S. Bank, 165 So. 3d 776, 778 (Fla. 5th DCA 2015) (holding that a witness properly laid the foundation for a prior servicer’s records because the witness “testif

2018However, since records crafted by a separate business lack the hallmarks of reliability inherent in a business’s self-generated records, proponents must demonstrate not only that “the other requirements of [the business records exception rule] are met” but also that the successor business relies upon those records and “the circumstances indicate the records are trustworthy.” United States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993). 3 ....

2018However, since records crafted by a separate business lack the hallmarks of reliability inherent in a business’s self-generated records, proponents must demonstrate not only that “the other requirements of [the business records exception rule] are met” but also that the successor business relies upon those records and “the circumstances indicate the records are trustworthy.” United States v. Childs, 5 F.3d 1328, 1333 (9th Cir. 1993). ....

2016See Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014) (finding that the testimony of a witness failed to establish the necessary foundation for admitting evidence under the business records exception because the witness was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, or whether the original, owner regularly made such records); Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780 , 782-83 (Fla. 4th DCA 2011) (finding that an affidavit of a loan servicing specialist was inadmissible hearsay becau

2015However, “[t]he law does not require an affiant who relies on computerized bank records to be the records custodian who entered or created the data, nor must the affiant identify who entered the data into the computer.” Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780 , 782 n. 2 (Fla. 4th DCA 2011); see also Lindsey v. Cadence Bank, N.A., 135 So.3d 1164, 1168 (Fla. 1st DCA 2014) (holding that an assistant vice president of the plaintiff bank “demonstrated a sufficient understanding of the bank’s computerized loan processing system to establish the foundation necessary to admit the printouts at

1997Even though probation department records may, if a proper predicate is established, be admitted into evidence under the business records exception to the hearsay rule, the state did not attempt to introduce those records in this case. § 90.803(6), Fla. Stat. (1995); Williams v. State, 666 So.2d 187 (Fla. 2d DCA 1995); Adams, 521 So.2d at 338 .

1989Records prepared by the probation department, may, with the showing of a proper predicate, be admitted into evidence under the business records exception to the hearsay rule. § 90.803(6), Fla. Stat. (1987); Adams v. State, 521 So.2d 337 (Fla. 4th DCA 1988).

2017In Hunter, the witness, an employee of Rushmore, attempted to lay the foundation to admit loan records of MortgagelT under the business records exception. 137 So.3d at 570 .

2016See Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st DCA 2014) (finding that the testimony of a witness failed to establish the necessary foundation for admitting evidence under the business records exception because the witness was unable to substantiate when the records were made, whether the information they contained derived from a person with knowledge, or whether the original, owner regularly made such records); Glarum v. LaSalle Bank Nat’l Ass’n, 83 So.3d 780 , 782-83 (Fla. 4th DCA 2011) (finding that an affidavit of a loan servicing specialist was inadmissible hearsay becau

2025Id.

2015In order to be admissible under the business records exception, the movant must establish that “(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that busi ness to make such a record.” Yisrael v. State, 993 So.2d 952, 956 (Fla.2008) (citing Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999)).

2018We note that the Sanchez court also found that the bank failed to satisfy its initial burden of laying the predicate under the business records exception because counsel for the bank failed to ask "whether each exhibit was 'made at or near the time of the event' that it described." Sanchez , 179 So.3d at 540 (quoting Peuguero v. Bank of Am., N.A. , 169 So.3d 1198 , 1201 (Fla. 4th DCA 2015) ).

2016In Peuguero v. Bank of America, N.A., 169 So.3d 1198, 1201 (Fla. 4th DCA 2015), we held that the bank’s witness laid the necessary foundation under the business records exception when she testified about the bank’s procedure for inputting payment information into the proper computer systems.

2010See Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991) (holding that, at a probation revocation hearing, the business records exception to the hearsay rule is inapplicable when no one from the lab testifies as to knowledge of testing and reporting procedure; therefore the lab report is inadmissible).

1994As this court concluded in Hogan , to fit within the business records exception: the lab reports must have been "kept in the course of a regularly conducted business activity," and the making of the reports must be a "regular practice of that business activity." If it is not in the regular course of business to make a particular type of record, the record is not admissible under this exception. 583 So.2d at 427 (emphasis in original).

2018Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008); accord § 90.803(6)(a). "[W]hen a business record contains a hearsay statement, the admissibility of the record depends on whether the hearsay statement in the record would itself be admissible under some exception to the hearsay rule." Van Zant v. State, 372 So. 2d 502, 503 (Fla. 1st DCA 1979). "[I]f the person who prepared the record could not testify in court concerning the recorded information, the information does not become admissible as evidence merely because it has been recorded in the regular course of business." Id.

2005The scenario is similar to that recently faced by the Fifth District in Reichenberg v. Davis, 846 So.2d 1233 (Fla. 5th DCA 2003), in which the district court determined that the information contained within the records of the Department of Children and Families pertaining to the alleged sexual abuse of a seven-year-old boy was not admissible under the business records exception because it was relayed by witnesses, and not "based upon the personal knowledge of an agent of the `business.'" Id. at 1234 ; see also Van Zant, 372 So.2d at 503 (determining that the business record exception did not e

2017See 23 Fla. Jur. 2d Medical Records § 320 (“As with other forms of business records, medical records can be entered as evidence if made at or near the time by, or from information transmitted by, a person with knowledge; if kept in - 28 - 657, 660 (Fla. 1981) (holding that an exhibit containing a compilation of dates, total charges, and payments from various sources for over one thousand Baker Act patients treated by the hospital over a period of time was admissible under the business records exception because “the underlying data upon which the questioned exhibit was based was prepared and ke

2017Bd., 397 So.2d 657, 660 (Fla. 1981) (holding that an exhibit containing' a compilation of dates, total charges, and payments from various sources for over one thousand Baker Act patients treated- by the hospital over a period of time was admissible under the business records exception because “the underlying data upon which the questioned exhibit was based was prepared and kept in the regular course of business”); CF Chems., Inc. v. Fla. Dep’t of Labor & Emp’t Sec., 400 So.2d 846, 848 (Fla. 2d DCA 1981) (holding that employee attendance records were made in the regular course of business, wher

2010See Yisrael v. State, 993 So.2d 952, 956 (Fla.2008) (“[T]he evi-dentiary proponent ... had the burden supplying a proper predicate to admit this evidence under an exception to the rule against hearsay.”); Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974) (“Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.”) (citations omitted); see also Jackson v. State, 877 So.2d 816, 816-17 (Fla. 4th DCA 2004) (quoting Pickrell).

1985We adopt the rule stated by our sister court: "Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product." Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974) (emphasis in original); (interpreting the business records exception to the hearsay rule, Section 90.803(6), Florida Statutes).

2004See Johnson v. State, 691 So.2d 43, 44 (Fla. 2d DCA 1997) (determining that hearsay testimony of probation officer was insufficient to support a violation when the State failed to introduce the probation file into evidence under the business records exception to the hearsay rule).

1999See Johnson v. State, 691 So.2d 43, 44 (Fla. 2d DCA 1997); Hudson v. State, 489 So.2d 808, 809 (Fla. 4th DCA 1986).

2015In the mortgage foreclosure context, proper authentication by a witness for the purposes of the business records exception “requires that the witness demonstrate familiarity with the record-keeping system of [the] business that prepared the document and knowledge of how the data was uploaded into the system.” Burdeshaw v. Bank of New York Mellon, 148 So.3d 819, 823 (Fla. 1st DCA 2014) (citing Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012)).

2015The statement of evidence and proceedings, as approved by the trial court, refers generally to Appellant’s objections “to the introduction of evidence” which were “all overruled, including objections as to hearsay, authentication, and relevance.” However, unlike the record in Burdeshaw v. Bank of New York Mellon, 148 So.3d 819 (Fla. 1st DCA 2014), which contained a complete transcript of the final hearing, the bald reference in the statement of evidence in this case provides no particulars of the context or specifics of any hearsay argument, such as the application of the business records exce

2005See Yost v. Unemployment Appeals Comm'n, 848 So.2d 1235, 1237-38 (Fla. 2d DCA 2003) (holding that "evidence, consisting solely of inadmissible hearsay, could not support a denial of benefits" notwithstanding employee's "failure to object to the admissibility of this hearsay testimony"); Doyle, 635 So.2d at 1032 ("The fact that an employee does not object to the admissibility of such critical documentary evidence does not preclude an appellate court from considering the sufficiency of the evidence to support the UAC's decision."); Harris v. Game & Fresh Water Fish Comm'n, 495 So.2d 806, 809 (Fl

1995See Harris v. Game & Fresh Water Fish Comm'n, 495 So.2d 806 (Fla. 1st DCA 1986).

2019Id. at D348-49.

2018We note that the Sanchez court also found that the bank failed to satisfy its initial burden of laying the predicate under the business records exception because counsel for the bank failed to ask "whether each exhibit was 'made at or near the time of the event' that it described." Sanchez , 179 So.3d at 540 (quoting Peuguero v. Bank of Am., N.A. , 169 So.3d 1198 , 1201 (Fla. 4th DCA 2015) ).

2012Agreeing with the position of those two cases, the Second District held that a CME report “prepared for the purpose of litigation lacks the trustworthiness that business records are presumed to have, and therefore, is not admissible under the business records exception.” McElroy, 753 So.2d at 126 .

2003See Love v. Garcia, 634 So.2d 158, 160 (Fla.1994); accord McElroy v. Perry, 753 So.2d 121, 125-26 (Fla. 2d DCA 2000); Phillips v. Ficarra, 618 So.2d 312, 313-14 (Fla. 4th DCA 1993); see generally Lazorick v. Brown, 195 N.J.Super. 444 , 480 A.2d 223, 226 (App.Div.1984) (noting that despite the business records exception to the hearsay rule, the record may be excluded as substantive proof if the opinions therein relate to the diagnosis of a complex medical condition difficult to determine or substantiate and the expert is unavailable for cross-examination).

2015Additionally, the Second District reversed a trial court’s ruling that evidence was inadmissible under the business records exception in WAMCO XXVIII, Ltd. v. Integrated Electronic Environments, Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005).

2015The Second District held WAMCO’s records were properly admitted under the business records exception, noting that, although documents may be excluded under section 90.803(6) if “the sources of information or other circumstances show lack of trustworthiness,” the debtors “did not demonstrate, and nothing in the record established], that the loan information WAMCO received from Bank of America was suspect or untrustworthy or that the balances that WAMCO claimed as due were incorrect.” Id. (emphasis added).

2024Instead, “[t]he record custodian or any qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.” Mann v. State, 787 So. 2d 130, 135 (Fla. 3d DCA 2001). 2 Consistent with these principles, the records custodian testimony presented by the insurer in this case sufficiently established that both the challenged letter of representation and examination under oath notices qualified for admission under the business records exception.

2010Contrary to the trial court’s ruling, in order to lay a foundation for the business records exception to the hearsay rule, “it is not necessary to call the person who actually prepared the document.” Mann v. State, 787 So.2d 130, 135 (Fla. 3d DCA 2001).

2015We relied on WAMCO in Holt v. Calchas, LLC, 155 So.3d 499 (Fla. 4th DCA 2015), when we held that records can be admitted under the business records exception where “[a] subsequent note holder can also provide testimony consistent with that which was approved by the Second District in WAMCO, where- the current nóte holder had procedures in place to check the accuracy of the information it received from the previous note, holder.” Id. at 506 .

2015We relied on WAMCO in Holt v. Calchas, LLC, 155 So.3d 499 (Fla. 4th DCA 2015), when we held that records can be admitted under the business records exception where “[a] subsequent note holder can also provide testimony consistent with that which was approved by the Second District in WAMCO, where- the current nóte holder had procedures in place to check the accuracy of the information it received from the previous note, holder.” Id. at 506 .

2015In the mortgage foreclosure context, proper authentication by a witness for the purposes of the business records exception “requires that the witness demonstrate familiarity with the record-keeping system of [the] business that prepared the document and knowledge of how the data was uploaded into the system.” Burdeshaw v. Bank of New York Mellon, 148 So.3d 819, 823 (Fla. 1st DCA 2014) (citing Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So.3d 1111 (Fla. 4th DCA 2012)).

2014By contrast, in Weisenberg , the court found that the affidavit of a supervisor for the bank’s servicing agent was sufficient to lay the foundation under the business records exception for the loan balance reflected in the servicing agent’s computer system because the supervisor’s deposition testimony “demonstrated that she was familiar with the bank’s record-keeping system and had knowledge of how the data was uploaded into the system.” See 89 So.3d at 1112 .

2015The First District held that the witness’s “testimony failed to establish the necessary foundation for admitting [the documents] ... into evidence under the business records exception.” Id.

2014The First District held that the witness’ “testimony failed to establish the necessary foundation for admitting [the documents]. . . into evidence under the business records exception.” Id.

2026“While the business records exception to the hearsay rule allows the admission of a memorandum, report, record, or data compilation, it does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.” Helton v. Bank of Am., N.A., 187 So. 3d 245, 247 (Fla. 5th DCA 2016) (quoting Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998)).

2017See Evans v. HSBC Bank, USA, Nat’l Ass’n, 2017 WL 1829484 (Fla. 2d DCA May 5, 2017); Miller v. Bank of America, N.A., 201 So. 3d 1286 (Fla. 5th DCA 2016); Helton v. Bank of America, N.A., 187 So. 3d 245 (Fla. 5th DCA 2016). service agreement and the note routing history under the business records exception, then I agree that they could have been used to show that BONY held the note at the time the initial complaint was filed and therefore had standing to sue.

2025Corp. III, 236 So. 3d 1170, 1172 (Fla. 2d DCA 2018), approved, 298 So. 3d 531 , 535-36 (Fla. 2020) (“A party can lay a foundation for the business records exception in three ways: (1) offering testimony of a records custodian, (2) presenting a certification or declaration that each of the elements has been satisfied, or (3) obtaining a stipulation of admissibility”; and “once the proponent lays the predicate for admission of documents set forth in the statute and reflected in our case law, ‘the burden shifts to the opposing party to prove that the records are untrustworthy’”) (additional quota

2020Because Birsh testified to his familiarity with the business practices of his company and to each foundational requirement, we agree with the trial judge and the Second District that Birsh’s testimony was “sufficient to satisfy [HFC’s] initial burden to lay the predicate for the business records exception.” Jackson, 236 So. 3d at 1175 ; see also United States v. Langford, 647 F. 3d 1309, 1327 (11th Cir. 2011) (finding a proper foundation laid for the admission of business records - 10 - where the records custodian testified that “she had personal knowledge of the process involved in gathering