Monday, December 07, 2015

Florida Appeals Court Reverses Another Trial Judge Who Improperly Allowed Introduction Of Prior Loan Servicer's Mortgage Records, Inexplicably Accepting Unqualified Sole Witness' Testimony That "[T]hey’re A Reputable Big Company & We Trust Them & They Trust Us” To Authenticate Records, Establish Accuracy

From a client alert from the law firm Burr & Forman:
  • In Ensler v. Aurora Loan Servs., LLC, the Fourth District Court of Appeal of Florida was faced with the issue of whether a prior mortgage loan servicer’s documents could be introduced into evidence when the current servicer testified the prior servicer’s records were “accurate” because “[t]hey’re a reputable big company and we trust them and they trust us.”

    The Court stated that in the case at bar, Plaintiff failed to satisfy the requirements of the business records exception by failing to lay the appropriate foundation. Plaintiff’s sole witness never worked for the prior servicer, never visited the prior servicer, and never spoke to any employee of the prior servicer. Further, the witness lacked any knowledge of how the prior servicer processed, compiled, or retained its business records. Moreover, Plaintiff’s sole witness also failed to provide any testimony as to the mechanisms the current servicer utilized to check the accuracy of the prior servicer information. As such, the trial court’s entry of judgment was reversed and remanded for further proceedings.

    Rarely does a residential mortgage foreclosure action get to the trial stage without a plaintiff having to rely on prior servicer records. Recently, Florida courts have consistently required that all of the elements of the business records exception be clearly established at trial. In this action, Plaintiff’s sole witness lacked the personal knowledge to lay the necessary foundation to introduce the documents.

    At the very least, Plaintiff should have determined if the witness could speak with someone or receive training from the prior servicer regarding their record-keeping activities prior to the trial. Further, it also appears that the Plaintiff failed to elicit any testimony regarding the current servicer’s boarding process that analyzes the accuracy of prior servicer records.

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