DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET BACKED PASS-THROUGH CERTIFICATES SERIES 2007-QS11, Appellant,
CARLOS MERCED, JR. and ALETHEA MERCED, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, John Dean Moxley,
Jr., Senior Judge.
William L. Grimsley and N. Mark New ll, of McGlinchey
Stafford, Jacksonville, and Jennifer M. Chapkin of McGlinchey
Stafford, Fort Lauderdale, for Appellant.
P. Stopa, of Stopa Law Firm, Tampa, for Appellees.
Bank Trust Company Americas, as Trustee for Residential
Accredit Loans, Inc., Mortgage Asset Backed Pass-Through
Certificates Series 2007-QS11 ("Deutsche Bank"),
appeals a final judgment of involuntary dismissal entered in
favor of Carlos Merced, Jr. and Alethea Merced. We reverse
and remand for a new trial.
2015, Deutsche Bank filed a complaint seeking to foreclose
the Merceds' residential mortgage. Before trial, the
court entered a partial summary judgment finding that
Deutsche Bank had standing to foreclose, and that ruling has
not been challenged on appeal. The court held a non-jury
trial on the remaining issues of compliance with conditions
precedent and the amount due and owing on the note.
trial, Deutsche Bank presented Dorothy Thomas as a witness.
Thomas is a corporate representative of PNC Bank, National
Association S/B/M to National City Mortgage, a division of
National City Bank ("PNC"), the servicer of the
subject loan. Thomas testified that she had worked as a
senior default litigation specialist for PNC since 2009. She
also testified that she had worked in the same position at a
division of National City Bank since 1992. National City was
the original servicer and merged with PNC in 2009.
testified that she was familiar with the Merceds'
mortgage account based on her review of the payment history,
correspondence such as PNC's demand letter to the
Merceds, system notes, and copies of the note, mortgage, and
assignments that were contained in PNC's system of
record. She testified to the programs PNC used to maintain
records and that the records in the system were true and
accurate copies of what was scanned into PNC's system.
Bank then moved to enter a series of business record exhibits
into evidence, including a limited power of attorney and a
copy of a loan modification document. Thomas testified to
recognizing and personally reviewing all of the proposed
documents, her familiarity with PNC's and National
City's policies and procedures regarding the documents,
that the documents were created near or at the time of the
respective event by a person with knowledge, and to PNC's
duty to maintain the documents truthfully and accurately in
its regular course of business. The Merceds stipulated to the
entry of several of the documents into evidence but moved to
exclude the power of attorney for lack of foundation. The
court excluded the power of attorney, finding that it did not
qualify for the business records exception to hearsay.
Merceds then moved to strike Thomas as a witness based on the
exclusion of the power of attorney, arguing that she lacked
contractual authority to appear on behalf of Deutsche Bank.
The court agreed and struck Thomas as a witness. Therefore,
Deutsche Bank was unable to enter several business records
into evidence, including a copy of the loan modification
document. Ultimately, the trial court granted the
Merceds' motion for involuntary dismissal based on the
absence of the loan modification document, concluding that it
was unable to calculate the amount due and owing. This appeal
dispositive issue on appeal is that the trial court abused
its discretion in striking Thomas as a witness based on the
exclusion of the power of attorney. Proof of contractual
authority to testify is not required for a witness to lay the
foundation for the business records exception to hearsay
because a witness may testify to matters within his or her
personal knowledge. See U.S. Bank Nat'l Ass'n v.
Clarke, 192 So.3d 620, 621 n.1 (Fla. 4th DCA 2016).
Section 90.803(6), Florida Statutes, provides that business
records may be "shown by the testimony of the custodian
or other qualified witness" and does not impose the
requirement that such individuals be contractually authorized
to so testify.
was a qualified witness, and the court abused its discretion
in striking her testimony. Under 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). The party must then 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 business to make such a
record." Id. at 212-13 (citing Yisrael v.
State, 993 So.2d 952, 956 (Fla. 2008)).
testified that she had worked as a senior default litigation
specialist for National City and PNC for twenty-four years,
that she was familiar with National City and PNC's
policies and procedures with respect to servicing loans, and
that PNC was the servicer of the loan at issue. She also
testified that she was familiar with the Merceds'
mortgage account, the documents in their account were created
near or at the time of the occurrence of the event by a
person with knowledge, PNC had a duty to maintain those
documents truthfully and accurately, and PNC kept the
documents in its regular course of business. Thus,
Thomas's testimony demonstrated sufficient personal
knowledge of PNC's business relationship with Deutsche
Bank and PNC's record-keeping system to lay the
foundation for Deutsche Bank's business records,
including the dispositive copy of the loan modification
document. Cf. Bank of N.Y. v. Calloway, 157 So.3d