IN THE CIRCUIT COURT OF THE _________ JUDICIAL CIRCUIT,
IN AND FOR ______ COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
BANK ____; Plaintiff, vs. JOHN SMITH, et al., Defendants.
_________________________________________/
Case No.: _____________
MEMORANDUM OF LAW IN SUPPORT OF
ADMISSION OF BUSINESS RECORDS AT TRIAL

COMES NOW the Plaintiff, BANK by and through its undersigned counsel, and pursuant to Fla. Stat. 90.803(6) files this Memorandum of Law in Support of the Admission of its Business Records at the trial of this case held on March 7, 2012.
MEMORANDUM OF LAW
This is a mortgage foreclosure action which was tried on March 7, 2012. At the trial of this case, Plaintiff’s representative appeared as the Records Custodian and corporate representative of the Plaintiff, Bank. In seeking to introduce the admission of the Note, Mortgage, payment history, demand letter (Intent to Accelerate), and The Plaintiff’s Records Custodian testified under oath:
a. That the records sought to be introduced were made at or near the time of the event;
b. The records were made by or from information transmitted by a person with knowledge;
c. The records were kept in the ordinary course of a regularly conducted business activity;
d. And that it was a regular practice of Bank of America to make such a record.
Pursuant to Fla. Stat. 90.803(6) this testimony is sufficient for the introduction of the Plaintiff’s records under the Business Records exception to the hearsay rule. See Freemon v. Deutsche Bank Trust Co., 46 So. 3d 1202 (4th DCA 2010) (affirming judgment for bank where affiant for bank in foreclosure action did not attest that she personally made all the entries for any particular mortgage, and that the default by defendant, and the amounts due and owing were acquired by “imputing the mortgagor’s name into the computer which contains all of the mortgage information. The computer then provides her with the amount of the outstanding mortgage, interest, and charges.”)
The Business Records Exception was created for precisely the situation in this case. With a business the size of Bank, where millions of payments are made through various methods including payment by mail, through bank to bank transfers, through credit card payments made online, through hand-held devices, in person at branches, wire transfers and the like, it is not one individual or even dozens of individuals who are accepting and crediting these payments, but an automated system to which the testifying representative had access, but could no more alter the payment nor the payment history, than she could identify the “names” of the persons who input the information. Because of its sheer size, number of employees, and the automated nature of the record keeping, the habit of repetitive, regular and continuous precision makes the records reliable and less likely to have been altered.
The business records exception is deeply rooted in American Law first described in the Commonwealth Fund Act, adopted by Congress in 1936 as the rule for the federal courts, and the Uniform Business Records as Evidence Act. Also promulgated in 1936. The Advisory Committee’s Note to the creation of the Federal Rule of Evidence, 803(6), which is the model for Fla. Stat. 90.803(6), explained the need for the creation of the rule as follows:
These reform efforts were largely within the contest of business and commercial records, as the kind usually encountered, and concentrated considerable attention upon relaxing the requirement of producing as witnesses, or accounting for the nonproduction of, all participants in the process of gathering, transmitting, and recording information which the common law had evolved as a burdensome and crippling aspect of using records of this type. In their areas of primary emphasis on witnesses to be called and the general admissibility of ordinary business and commercial records, the Commonwealth fund Act and the Uniform Act appear to have worked well. The exception seeks to preserve their advantages. Id.

The Rule rests upon both reliability and necessity. If all participants to the process of gathering, transmitting, and recording information need to be produced to prove up the records, such as this, it would prove an insurmountable obstacle to foreclosure actions.
The question is in what cases it is necessary to supplement proof of the way in which the business is carried on and the entries are made, by the testimony of the entrants themselves. It is a matter in which the sluggishness of the law is especially disastrous. . . The routine of modern affairs, mercantile, financial and industrial, is conducted with so extreme a division of labor that the transactions cannot be proved at first hand without the concurrence of person, each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event. Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents. Unless they can be used in court without the task of calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business. . . [T]o continue a system of rules, originally designed to relieve small shopkeepers from their incompetence as witnesses into present day transactions is to cook the egg by burning down the house. Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co. 18 F.2d 934, 937 (2d Cir. 1927) (Hand, J.).

In fact, it is the routine nature of the record keeping by the Plaintiff in this case that satisfies the requirements of the Business Records Exception. See Fla. Stat. §90.803(6). Despite the implications of defense counsel, it is not necessary to call the person who actually prepared the document. Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So. 2d 1369 (Fla. 1st DCA 1992). “The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation.” Id. Moreover, the Forester court acknowledged that the “admission of evidence is within the sound judicial discretion of the trial judge, whose decision in such regard must be viewed in the context of the entire trial. Id. Quoting Jimenez v. Gulf & W. Mfg. Co., 458 So. 2d 58, 59 (Fla. 3rd DCA 1984).
The rule essentially states that certification or declaration of the records custodian satisfies the requirements of the rule “unless the sources of information or other circumstances show lack of trustworthiness.” Fla. Stat. §90.803(6). “Given the separate treatment in [federal] Rule 803(6) of untrustworthiness, we think the regular practice requirement should be generously construed to favor admission.” In re: Japanese Electronics Products, 723 F. 2d 238, 289 (3d Cir., 1983).
Moreover, the recent Florida mortgage foreclosure cases in which the courts found that the business records exception did not apply were distinguishable from the instant case as they involve individuals who:
e. testified that did not appear as the records custodian, did not work for the company that kept the payment records, and did not testify as to whether the records were prepared in the normal course of business. See Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011); and,
f. Testified that witness could not state if the records were made in the regular course of business, or when the records were made, and was relying on data supplied by a different loan servicer whose procedures he was unfamiliar with. See Glarum v. LaSalle Bank NA, No. 4D10-1372 (Fla. 4th DCA 2011).
Clearly, such is not the case here.
In the instant case, the original Note was filed with the court under separate cover and it shows that the originating lender was in fact, Plaintiff, Bank. The records produced by the witness in this case were the records of Bank. Pursuant to Fla. Stat. 90.902(8), certain documents are self-authenticating, and “Extinsic evidence of authenticity as a condition precedent to admissibility is not required for: (8) Commercial papers and signatures thereon and documents relating to them, to the extent provided in the Uniform Commercial Code.” The original Note and mortgage in this case, therefore, are self-authenticating and did not need the attestation of the records custodian. As under Fla. Stat. UCC 673.3081(1), [i]n an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings.” The mere “ production of a note is prima facie evidence of its validity and of the holder’s right to recover on it…. [N]o testimony was required to establish the genuineness of the signature on the notes. In effect UCC §3-307 creates a presumption that commercial paper offered in evidence is authentic and Rule 902 dispenses with a requirement of extrinsic evidence for admissibility. By requiring proof of the underlying transaction as a condition for admission the district court denied the defendant the benefit of the rule.
United States v. Carriger, 592 F. 2d 312, 316 (6th cir. 1979).
The original note, moreover, included a blank indorsement signed by Christina M. Schmitt Assistant Vice President on behalf of Bank. Possession of the original note, indorsed in blank, was sufficient under the UCC to establish that Plaintiff was the lawful holder of the note, entitled to enforce the terms. See Riggs v. Aurora, 36 So. 3d 932 (Fla. 4th DCA 2010).
These two aspects, the fact that Bank was the originating lender, and that the original note contains a blank indorsement is sufficient to show the Plaintiff had standing to file suit, and more importantly shows that the Plaintiff has the right to enforce the terms of the note and mortgage herein. Id. See also, Harvey v. Deutsche Bank.
It is worthwhile to repeat that the admission of evidence is within the sound judicial discretion of the trial judge, and that the court’s error in admitting or rejecting evidence does not necessarily constitute harmful error. “Only when it appears that such errors injuriously affect the substantial rights of the complaining party will a judgment be reversed.” Forester v. Jewell, quoting Parsons v. Motor Homes of Am., Inc., 465 Co. 2d 1285, 1290 (Fla. 2st DCA 1985). Here, the Defendant failed to show for the trial and presented no testimony or documentary evidence through any witness that he had any defense to this mortgage foreclosure action.
Finally, as this Court sits in Equity, should the Court find that this particular witness’ testimony was insufficient under the Business Records Exception to introduce the records of Bank, the Plaintiff would request the opportunity to either continue the trial to produce a different corporate representative to provide additional testimony, or alternatively, to allow the summary judgment to proceed that is scheduled for March 30, 2012.
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the parties listed on the attached Service List by United States mail on this _________________________________.

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