final until disposition of timely filed motion for rehearing.
appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 11-25240, Judith L. Kreeger, Senior Judge.
Rome, LLP, and Anthony R. Yanez and Nicole R. Topper (Ft.
Lauderdale), for appellant.
Keeley, PLLC, and Bruce Jacobs, for appellee.
ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
Bank National Trust Company ("Bank") appeals from a
final order granting homeowner Maria de Brito's
("Appellee") motion for involuntary dismissal of
the Bank's complaint in foreclosure. We reverse.
2006, Appellee's husband, Alfredo Brito, entered into an
adjustable rate mortgage with a negative amortization
provision. The Note provides that the Lender had the right to
change the interest rate and that any deficiency would be
added to the principal. Together with the Note, Mr. Brito and
Appellee executed the mortgage. The payment history reflects
that the amount of the monthly payments remained the same for
two and a half years. In August 2008, Mr. Brito sent in his
usual monthly payment, but Ocwen, the current servicer,
rejected the payment and returned the check to Mr. Brito. In
June 2010, the loan servicer sent a demand letter to Mr.
Brito, advising him of the default and necessary steps to
cure the default. With no response, in August 2011, the Bank
filed its complaint in foreclosure. The Appellee filed an
answer and raised a long list of affirmative defenses,
including failure to fulfil conditions precedent, faulty
practices of the mortgage industry in general, unclean hands,
and conspiracy to inflate premiums, among others. None of the
Appellee's affirmative defenses alleged that the Bank
failed to provide evidence of a change in interest rate or
payment amount, or that any alleged failure to provide this
notice improperly caused Appellee to default.
to the two-day bench trial,  Appellee's counsel deposed
Ocwen's witness, Mr. Blanchard, for over three hours. At
trial, Mr. Blanchard testified in detail as to the
servicer's boarding process, verifications, the payment
history, the notice of default and acceleration. The Note and
the demand letter were admitted into evidence by the trial
court and the payment history was admitted into evidence by
stipulation. At the end of trial, the Bank moved for final
judgment, and the Appellee moved for an involuntary
dismissal. On May 31, 2016, approximately three weeks after
conclusion of the trial, the trial court entered a written
Final Judgment granting the Appellee's motion for
involuntary dismissal, concluding - in total contradiction to
its admission of Ocwen's witness's testimony and
documents into evidence at trial - that the testimony was
hearsay, and that the Bank had thus failed to prove the
Appellee received a notice of payment or interest change that
could trigger a default (while noting that such was not
required). Without more, the trial court's Final Judgment
granting involuntary dismissal relied upon and adopted a
trial court's ruling from a separate and unrelated case
before a different judge with different witnesses, evidence,
and issues to determine that the Bank's witness in this
case did not provide an adequate foundation sufficient to
meet the business records exception under the hearsay rule.
standard of review of an order granting an involuntary
dismissal is de novo, viewing all of the evidence presented
and all available inferences from that evidence in the light
most favorable to the non-moving party. Maggolc, Inc. v.
Roberson, 116 So.3d 556, 558 (Fla. 3d DCA 2013). When
considered in the light most favorable to the Bank, the
record on appeal establishes sufficient evidence to sustain
the Bank's complaint in foreclosure.
business records exception, section 90.803(6), Florida
Statutes (2016), allows a party to introduce evidence that
would normally be inadmissible hearsay if:
(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.
Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008).
The foundation for admission of a business record may be
established by a records custodian or other qualified
witness, and that witness authenticating the records need not
be the person who actually prepared the business records.
See Deutsche Bank Trust Co. Ams. v. Frias,
178 So.3d 505 (Fla. 4th DCA 2015); Nationstar Mortg., LLC
v. Berdecia, 169 So.3d 209 (Fla. 5th DCA 2015);
Cayea v. CitiMortgage, Inc., 138 So.3d 1214, 1217
(Fla. 4th DCA 2014). The witness just needs to be well enough
acquainted with the activity to testify that the successor
business relies on those records, and that the circumstances
indicate the records are trustworthy. Bank of
New York v. Calloway, 157 So.3d 1064 (Fla. 4th DCA
2015); Berdecia, 169 So.3d at 216 ("Although
[the witness] did not personally participate in the
'boarding' process . . . [the witness] demonstrated a
sufficient familiarity with the 'boarding' process to
testify about it."); Cayea 138 So.3d at 1217.
It is not necessary to present a witness who was employed by
the prior servicer or who participated in the boarding
process. Ocwen Loan Servicing, LLC v. Gundersen, 204
So.3d 530 (Fla. 4th DCA 2016). "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.'" Calloway,
157 So.3d 1064, 1071 (Fla. 4th DCA 2015); see also Bank
of New York Mellon v. Johnson, 185 So.3d 594 (Fla 5th
DCA 2016); Wells Fargo Bank, N.A. v. Eisenberg, 220
So.3d 517 (Fla. 4th DCA 2017).
Ocwen's witness authenticating the records, Mr.
Blanchard, provided enough testimony to meet these
requirements. Mr. Blanchard's testimony concerning the
loan payment history and third party default letter was not
inadmissible hearsay and should have been admitted as an
exception to the hearsay rule. Mr. Blanchard's testimony
showed he was sufficiently acquainted with the history of the
records in this case to testify to the practice and procedure
for generating the default notice and demand letter, the
servicing platform, Ocwen's boarding process, and the
requirements for admitting mortgage documents. Mr. Blanchard
testified that American Home Mortgage was absorbed into Ocwen
in 2012, and that all of the prior servicers' documents
were verified for accuracy before incorporation into
Ocwen's records. Three weeks after the trial ended and
after the trial court had admitted the documents and
testimony into evidence the trial court decided that Mr.
Blanchard was not familiar enough with the practices and
procedures of Moss Codilis, one of the prior third party
vendors, and excluded the demand letter for that reason.
Although Mr. Blanchard was not familiar with the prior third
party vendor's recordkeeping practices and policies, he
did not have to be because the business records exception
does not contain such a requirement. See Cayea 138
So.3d at 1217. Mr. Blanchard had only to demonstrate that he
was well enough acquainted with preparation of the demand
letter in order to authenticate it. Calloway, 157