Citimortgage v. Hoskinson , 200 So. 3d 191 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
CITIMORTGAGE, INC.,
Appellant,
v. Case No. 5D14-4500
BARBRA A. HOSKINSON, ET AL.,
Appellees.
________________________________/
Opinion filed July 8, 2016
Appeal from the Circuit Court
for Orange County,
Emerson R. Thompson, Jr., Senior Judge.
Heidi J. Bassett, of Robertson,
Anschutz & Schneid, P.L., Boca
Raton, for Appellant.
Adam H. Sudbury, of Apellie Legal
Services, PLLC, Orlando, for
Appellees Barbra A. Hoskinson and
Michael P. Hoskinson.
No Appearance for other Appellees.
PER CURIAM.
In this mortgage foreclosure action, we review the propriety of an involuntary
dismissal and final judgment entered in favor of Appellees, the mortgagors. Because the
lower court based the dismissal on an incorrect evidentiary ruling, we reverse.
At a nonjury trial, Appellant presented one witness, through whom it sought to
introduce into evidence various documents, including a notice of breach and acceleration
letter. Sending such a letter was a condition precedent to acceleration of the note and
foreclosure of the mortgage. Appellees objected to introduction of the letter on hearsay
grounds, arguing that the witness was not qualified to lay the necessary foundation to
bring the letter within the business records exception to the hearsay rule. § 90.803(6)(a),
Fla. Stat. (2014). The trial court agreed.
Any qualified witness who has the necessary knowledge to testify as to how a
document was made may lay the foundation to bring the document within the business
records exception. Twilegar v. State, 42 So. 3d 177, 199 (Fla. 2010). All that is required
is that the witness be “‘well enough acquainted with the activity to give the testimony.’”
Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209, 213 (Fla. 5th DCA 2015) (quoting
Alexander v. Allstate Ins. Co., 388 So. 2d 592, 593 (Fla. 5th DCA 1980)). Appellant’s
witness met this criteria. She testified that Appellant’s customer service department
generates breach letters when mortgage payments become delinquent. The letters are
delivered to Appellant’s mail room on the day they are prepared and are collected by the
postal service that day or the following day. Although the witness had never worked in
the customer service department, she had trained side-by-side with someone in that
department and had observed the entire process from generating the breach letters to
delivering them to the mailroom. As such, she was qualified to authenticate the letter as
a business record.
We further conclude that Appellant offered sufficient evidence to show that the
letter was mailed. A rebuttable presumption of mailing can be shown through evidence
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of an organization’s routine practice. § 90.406, Fla. Stat. (2014); see Brown v. Giffen
Indus., Inc., 281 So. 2d 897, 899-900 (Fla. 1973). The witness testified to her personal
knowledge of Appellant’s general practice of delivering breach letters to the mail room,
where they are collected by the postal service. Although the witness did not see the
postal carrier collect the mail on the date in question, she had seen the carrier collect the
mail at other times. This testimony created a rebuttable presumption that the letter was
mailed in accordance with Appellant’s general practice. Appellees did not rebut that
presumption.
REVERSED AND REMANDED.
TORPY, COHEN and LAMBERT, JJ., concur.
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