State Appeals Court Bags Snoozing Fla. Trial Judge Allowing Bank Without Note & Mortgage To Bring Foreclosure Action, Introduce Inadmissible Evidence

Another Florida trial judge's ruling suffered a reversal in a foreclosure action.

In this case, the state's 1st District Court of Appeal found that, "Because the documentary evidence necessary to establish the amount owed under the note and mortgage was admitted without proper foundation(1) and it is undisputed that M & I Bank was not the holder of the mortgage and note," it had no choice but to reverse an earlier ruling by the ostensibly snoozing Levy County Circuit Court Judge Stanley H. Griffis, III.

(Once again, we have another example where, had a faulty foreclosure ruling not been pursued on appeal, homeowners defending against a foreclosure action would have been unfairly screwed over. Fortunately for these homeowners, limited finances was apparently not an obstacle to pursing this appeal, and they were represented by counsel who knew that the lower court ruling was incorrect and who knew how to handle appeals, something which, regrettably, can't be said for all attorneys who claim to do foreclosure defense work.)

For the ruling, see Mazine v. M&I Bank, Case No. 1D10-2127 (Fla. App. 1st DCA July 22, 2011).

(1) The court's analysis with respect to the inadmissible evidence allowed in by Judge Griffis follows (bold text is my emphasis):

• The only witness to testify at the bench trial regarding the allegations of the amended complaint was David Taxdal, the regional security officer for "M & I Marshall and Ilsley Bank" in the State of Florida.
  
  According to Taxdal's testimony, his "duties and responsibilities are fraud investigation, internal investigation and physical security for the branches" in Florida, and he does not originate loans, service loans or collect loans in default.
  
  Through Taxdal, the bank attempted to introduce several documents, including an affidavit as to amounts due and owing. The affidavit was executed by Michael Koontz, who did not appear at trial, and the bank sought to introduce it as a business record.
  
  Taxdal testified that he had no knowledge as to who prepared the documents submitted at trial by the bank as he is not involved in the preparation of documents such as the ones proffered by the bank, that he does not keep records as a records custodian, that he has no personal knowledge as to how the information in the affidavit as to the amounts due and owing was determined or whether it was prepared in the normal course of business, and that he did not know whether such information was accurate.
  
  Counsel for the defendants vigorously opposed admission of the affidavit of indebtedness, the only evidence of the amount allegedly in delinquency, as a business record. Counsel observed that the affiant (Koontz) was not subject to cross-examination, and that given the matters to which Taxdal testified it was evident that Taxdal "has no knowledge of the basis upon which this affidavit was prepared."
  
  The trial court denied defendants' objection and admitted the affidavit without explanation.
  
  This was error. Before a document may be admitted as a business record, a foundation for such admission must be laid. Section 90.803(6), Florida Statutes (2010), allows the admission of records of a regularly kept business activity when the business record was made at or near the time of the matters reported and when the business record is made by a person having personal knowledge of the matters reported or when the information supplied in the record is supplied by a person with knowledge.
  
  Further, it must be shown that the business record was kept in the ordinary course of a regularly conducted business activity and that it is the regular practice of the business keeping the record to make such a business record. Yisrael v. State, 993 So.2d 952 (Fla. 2008).
  
  While it is not necessary to call the individual who prepared the document, the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation. Forester v. Norman Roger Jewell & Brooks, 610 So.2d 1369, 1373 (Fla. 1st DCA 1992).
  
  Here, none of the requirements for admission of a business record were met. As noted, Taxdal candidly admitted that he had no knowledge as to the preparation or maintenance of the documents offered by the bank, including the affidavit as to amounts due and owing. Taxdal did not testify and, indeed, could not testify, that the affidavit as to the amounts owed was actually kept in the regular course of business.
  
  Further, he did not know if the source of the information contained in the affidavit was correct. He did not know if the amounts reported in the affidavit were accurate. There was no attempt to admit the affidavit by certification or declaration pursuant to section 90.803(6)(c), Florida Statutes.
  
  Accordingly, because no foundation was laid, the admission of the affidavit was erroneous. Because the affidavit was the only evidence as to the amount of defendants' default, the error was harmful necessitating that the amended final judgment of foreclosure be reversed.