Florida court reverses dismissal of foreclosure confirming the rule that a servicer can use prior servicer’s records to establish its case

The Second District Court of Appeals in Florida in AS Lily LLC v. Morgan, No. 2D14-863, 2015 (Fla. Dist. Ct. App. May 8, 2015) reversed a trial court’s dismissal of a mortgage foreclosure action because the plaintiff bank was the proper party to sue and had adequately proven that it had standing. On the standing issue the reviewing court concluded that because the plaintiff was the holder of the note and mortgage it had standing to foreclose. The appellate court also rejected the trial court’s ruling finding sustaining an objection to testimony from plaintiff’s witness, a representative of plaintiff’s servicer, that the servicer’s testimony was hearsay because it was based on a prior servicer’s records so was not admissible as a business record. The trial court was wrong in relying on case law authority which held that the witness could only provide inadmissible hearsay because he was testifying to material she obtained from another servicer and she was unfamiliar with how any of the data entries were made, either at the servicer for whom he worked or the servicer on whose data he relied. Here, the bank’s witness testified to procedures the servicer for whom she worked used in some detail and also testified about her personal experience with these loans in particular. Thus, the evidence sought to be adduced could be admitted as a business record.

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