DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF OF THE 

HOLDERS OF THE HARBORVIEW MORTGAGE LOAN TRUST 

MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2007-1,

Appellant,

v.

TONI BALKISSOON, DEVI BALKISSOON, TONI R. BALKISSOON, JR., 

ANY AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, 

UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL 

DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, 

WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS 

SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS, 

CITIBANK, N.A., AS SUCCESSOR BY MERGER TO CITIBANK (SOUTH 

DAKOTA, N.A.), and TENANT,

Appellees.

No. 4D14-669

[ February 3, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; William W. Haury, Judge; L.T. Case No. CACE12017999 

(11).

G. Bart Billbrough and Caroline Milewski of Billbrough & Marks, P.A., 

Coral Gables, for appellant.

Peter Ticktin, Kendrick Almaguer and Juliane A. Murphy of The Ticktin 

Law Group, P.A., Deerfield Beach, for appellees.

TAYLOR, J.

Wells Fargo Bank, N.A. (“Wells Fargo”) appeals the final judgment 

entered in favor of appellees Toni and Devi Balkissoon after its mortgage 

foreclosure case was involuntary dismissed at trial. Wells Fargo argues 

that the trial court erred in excluding evidence of the Balkissoons’ loan 

payment history and the notice of default and acceleration. Because Wells 

Fargo laid the necessary foundation for admission of this evidence, we 

reverse and remand for further proceedings.
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At trial, appellant presented the testimony of Luis Reyes, an assistant 

vice-president with Bank of America. Reyes testified that Bank of America 

was the servicer on the loan at the time of default. He testified that he was 

trained and familiar with the business practices of Bank of America 

regarding the receipt and posting of payments on loans and the payment 

histories generated. He described how, when Bank of America receives 

payments on the loans, the payments are posted on a servicing system 

called AS400. The AS400 system contains basic loan information, 

including the payment history, escrow information, and property address. 

After receiving a payment, Bank of America makes disbursements for 

property taxes and insurance. Those disbursements are documented on 

the AS400 system and reflected in the payment history.

Reyes identified the Bank of America payment history for the subject 

loan and testified that it reflected the payments received from the 

borrowers, as well as expenditures made by Bank of America on their 

behalf. He testified that the payment history record was made at or near 

the time of the events reflected and by or from information transmitted by 

persons with knowledge, that it was a record kept in the course of regularly 

conducted business activity, and that it was the regular practice of Bank 

of America to make a record of that activity.

When defense counsel objected to admission of the payment history on 

grounds of lack of foundation, the court allowed him to conduct a voir dire 

examination. On voir dire, defense counsel elicited testimony that Reyes 

had never actually worked in the payment posting department and was 

unable to describe the specific manual act of posting the payment in the 

computer system because it was not part of his job duties. Defense 

counsel renewed his objection to admission of the payment history on the 

ground that Reyes was not familiar with how the payments are posted to 

the AS400 system. The trial court sustained the objection and excluded 

the payment history record, based on Yang v. Sebastian Lakes 

Condominium Ass’n, 123 So. 3d 617 (Fla. 4th DCA 2013), and Glarum v. 

LaSalle Bank National Ass’n, 83 So. 3d 780 (Fla. 4th DCA 2011). Wells

Fargo’s counsel advised that he would not be able to prove default without 

the payment history and thus proffered the remainder of his evidence for 

appellate purposes.

Reyes identified the notice of default and acceleration. He explained 

that every night the AS400 system scans every loan for default. If a loan 

is in default, then the loan information is transmitted to a vendor over a 

secure connection. The vendor, Waltz, creates a notice letter, using the 

transmitted information and a Bank of America template. Waltz sends the 

notice to the borrower and a copy to Bank of America. This process takes 
3

one to two days.

On cross-examination, Reyes admitted that he was not familiar with 

Waltz’s corporate structure and did not know which department created 

the notice. Defense counsel objected to the notice of default and 

acceleration, arguing that Reyes was not sufficiently familiar with Waltz’s 

practices and procedures. After the trial court sustained the objection, 

defense counsel moved for an involuntary dismissal because Wells Fargo 

failed to establish default damages or to prove that it fulfilled the 

conditions precedent to filing suit. The trial court granted the motion, 

prompting this appeal.

The standard of review for a motion for involuntary dismissal is de novo. 

Brundage v. Bank of Am., 996 So. 2d 877, 881 (Fla. 4th DCA 2008). An 

involuntary dismissal is proper “only when the evidence considered in the 

light most favorable to the non-moving party fails to establish a prima facie

case on the non-moving party’s claim.” McCabe v. Hanley, 886 So. 2d 

1053, 1055 (Fla. 4th DCA 2004) (quoting Hack v. Estate of Helling, 811 So.

2d 822, 825 (Fla. 5th DCA 2002)).

In this case, the involuntary dismissal resulted from two evidentiary 

rulings regarding business records. A trial court’s ruling on the 

admissibility of evidence is reviewed for abuse of discretion. Yang, 123 So. 

3d at 620. That discretion is limited by the rules of evidence. Id.

Pursuant to section 90.803(6)(a), Florida Statutes (2013), for business 

records to be admitted into evidence “the proponent must show 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.” Yisrael 

v. State, 993 So. 2d 952, 956 (Fla. 2008).

The foundation necessary for admission of a business record may be 

established by a records custodian or other qualified witness. § 

90.803(6)(a), Fla. Stat. The witness authenticating the records “need not 

be the person who actually prepared the business records.” Cayea v. 

CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014) (citation and 

internal quotation marks omitted). Instead, “the witness just need be well 

enough acquainted with the activity to provide testimony.” Id.

Exclusion of the Payment History

Relying on Glarum and Yang, the trial court found that Wells Fargo did 
4

not lay the requisite foundation for admission of the payment history 

because Reyes could not explain the mechanics of the posting process. 

Glarum and Yang can be distinguished from this case, however, because 

the witnesses in those cases had little or no knowledge of the practices 

and procedures of the prior servicer or accountant who produced the 

records. In Glarum, we held that a loan servicer’s affidavit was insufficient 

to prove the amount of indebtedness, because the affiant had no 

knowledge of how his own company’s payment history data was produced. 

83 So. 3d at 782. He also admitted that he relied partly on data retrieved 

from a prior servicer of the loan, with whose procedures he was even less 

familiar. Id. at 783. Because the specialist could not authenticate the 

data, we held that the affidavit of indebtedness constituted inadmissible 

hearsay. Id.

In Yang, we held that the condominium association failed to lay the 

proper foundation for admission of payment ledgers under the business 

records exception, because the association’s witness could not attest to 

the accuracy of the starting balances in the records and she was 

unfamiliar with the practices and procedures of the previous management 

company’s accountant. 123 So. 3d at 621. In contrast, the testimony in 

this case was being offered by a Bank of America witness about Bank of 

America’s records. No prior entity issue was involved. Reyes worked for 

Bank of America and testified in detail about Bank of America’s practices 

and procedures for creating the payment history.

Our decision in Weisenberg v. Deutsche Bank National Trust Co., 89 So. 

3d 1111, 1112 (Fla. 4th DCA 2012), is more on point. There, in an appeal 

of a summary final judgment against a borrower in a mortgage foreclosure 

action, we considered the borrower’s argument that there was an 

insufficient foundation for admission of an affidavit of amounts due and 

owing. We concluded that the record contained a sufficient foundation for 

admission of the affidavit because the witness “knew how the data was 

produced.” We explained:

[The witness] testified that the cashiering department was 

responsible for collecting and applying payments. 

Information relating to the servicing of the loans was kept in 

a program known as the mortgage servicing platform, which 

she relied on to verify the specific figures in her affidavit. Her 

testimony demonstrated that she was familiar with the bank’s 

record-keeping system and had knowledge of how the data

was uploaded into the system.

Id.
5

Similarly in Cayea, we held that the bank’s witness, who worked in the 

default research and litigation department, laid the foundation for 

admission of the defendants’ payment history by testifying that:

[I]t was the regular business practice of Citi to input payments 

into its system upon receipt and payments were entered into 

Citi’s system, “Citilink,” by employees of its payment 

processing department. He further testified that the payment 

processing department had two groups—one which monitored 

electronic payments and one which monitored payments by 

mail—each of which were responsible for posting their 

respective payments into the proper account in Citilink.

Lastly, the witness testified that such entries were kept in the 

ordinary course of business activity at Citi and it was the 

ordinary business practice of Citi to keep individual records 

for each loan.

138 So. 3d at 1216 (emphasis removed).

In Peuguero v. Bank of America, N.A., 169 So. 3d 1198, 1201 (Fla. 4th 

DCA 2015), we held that the bank’s witness laid the necessary foundation 

under the business records exception when she testified about the bank’s 

procedure for inputting payment information into the proper computer 

systems. We stated:

Although [the witness] was unable to give the precise name for 

each group in the Bank’s structural hierarchy that was 

responsible for entering various events into the computerized 

records, she knew that the events/transactions were 

processed at the time of their occurrence and placed into the 

Bank’s systems, as per standard business practice for the 

Bank.

Id.

Reyes’s testimony was similar to that of the witnesses in Weisenberg, 

Cayea, and Peuguero. He described in detail how payments are received 

and processed by the payment center through use of the AS400 system. 

The AS400 system contains basic loan information, including the payment 

history, escrow information, and property address. Bank of America 

applies payments it receives to the interest and principal on the loan and 

then to tax and insurance. The payment center records the allocation of 

funds in the AS400 system.
6

Reyes also identified the Balkissoons’ payment history. He testified 

that the payment records were made at or near the time the events 

occurred. The record was made by or from information transmitted by 

persons with knowledge and kept in the ordinary course of regularly 

conducted business activity. He also testified that it was the regular 

practice of the company to make these payment records. Reyes’s 

explanation about how the payment was allocated and recorded on the 

system was sufficient testimony about how the data was “uploaded” to the 

system. Although Reyes was not familiar with the mechanics of actually 

typing the data into the system, there is no requirement that the witness 

have such knowledge. See Cayea, 138 So. 3d at 1217 (explaining that the 

witness authenticating the records need not be “the person who actually 

prepared the business records”).

Mr. Reyes also demonstrated he had personal knowledge concerning 

the accuracy of Bank of America’s records. He testified about his personal 

familiarity with the posting of payments and personal knowledge that the 

employees in the payment center accurately update the payment histories. 

He testified that he had personally received payments from borrowers, sent 

them to the payment processing department, and was able to later verify 

that the payments were properly credited to the proper loan accounts.

Exclusion of the Default/Acceleration Letter

Similarly, Reyes demonstrated that he was sufficiently familiar with 

Bank of America’s practice and procedure for generating and sending the 

default notice to meet the business records exception. He testified that 

the notice was made at or near the time of the events reflected therein and 

made by or from information transmitted by people with knowledge. Each 

night, Bank of America transmitted the information for loans in default to 

Waltz over a secure connection. Waltz used a Bank of America template 

to create the notice within two days of receiving the loan information. 

Waltz did not generate any of the information in the notice. Mr. Reyes 

testified that the copy of the notice was kept in the ordinary course of Bank 

of America’s regularly conducted business activity and it was the regular 

practice of Bank of America to make this record. Once Waltz generated 

the notice and mailed it, Bank of America kept a copy of the notice in its 

records and made a note of the mailing date.

In sum, Reyes was sufficiently familiar with Bank of America’s practices 

and procedures in creating the payment history and the notice of default 

and acceleration to lay the necessary foundation for the admission of those 

documents. Because the trial court erred in excluding these documents 
7

from evidence, we reverse the final order of dismissal and remand for 

further proceedings.

Reversed and remanded for further proceedings.

CIKLIN, C.J., and LEVINE, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.