DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SONIA J. SANCHEZ and HECTOR L. SANCHEZ,

Appellants,

v.

SUNTRUST BANK, et al.,

Appellees.

No. 4D14-2457

[November 25, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Jack Schramm Cox, Judge; L.T. Case No. 2010CA000680 

XXXXMB.

Reid C. McCullough, Kendrick Almaguer, Peter Ticktin and Josh Bleil 

of The Ticktin Law Group, P.A., Deerfield Beach, for appellants.

Adam M. Topel, Jacob E. Mitrani and Frank P. Cuneo of Liebler, 

Gonzalez & Portuondo, Miami, for appellee Suntrust Bank.

KLINGENSMITH, J.

Sonia J. Sanchez and Hector L. Sanchez (“appellants”) appeal the trial 

court’s final judgment of foreclosure in favor of Suntrust Bank (“appellee”).

They argue that the trial court abused its discretion by admitting certain 

documents into evidence under the business records exception. These 

documents include: a screenshot of a computerized record keeping 

system; the payment history; two default letters; the collection notes; and 

a payoff calculation. We agree with appellants and reverse.

Appellants executed a promissory note and mortgage with Suntrust 

Mortgage LLC (“Suntrust Mortgage”), a wholly owned subsidiary of 

appellee and the servicer of appellants’ loan, in June 2006. In January 

2010 appellee filed its initial complaint, but failed to attach the note. 

Later, in May 2010, appellee filed the original note which contained an 

undated, blank endorsement from Suntrust Mortgage.

At trial, appellee called an employee of Suntrust Mortgage to testify on 

various matters. During his testimony, he was also asked to authenticate 
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several documents intended for admission into evidence as business 

records. He explained that his job required him to review appellee’s 

foreclosure files and internal systems, and that he typically reviewed the 

note, mortgage, breach letter, and payment history before attending trial. 

He also testified that he was familiar with three separate record keeping 

systems utilized by both Suntrust Mortgage and appellee.

The note in this case contained a blank endorsement, and the witness

explained that he knew the blank endorsement was placed on the note 

prior to the filing of the initial complaint because it was appellee’s policy

to endorse notes upon receiving them after execution. Reading from the 

screenshot, which he stated was taken from “the system . . . used by our 

vault people to keep track of any original documents,” he testified that the 

note was endorsed in blank three days after the promissory note and 

mortgage were executed, and over three years before suit was filed.

The trial court admitted the screenshot under the business records 

exception, over appellants’ objection claiming lack of foundation and 

hearsay. Subsequently, appellee also successfully moved the payment 

history, default letters, collection notes, and payoff calculation into 

evidence on the same grounds, over appellants’ same objections. 

As we have held in the past:

The business records exception, found in section 90.803(6), 

Florida Statutes (2013), allows a party to introduce evidence 

that would normally be inadmissible hearsay if: 

(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.

Peuguero v. Bank of Am., N.A., 169 So. 3d 1198, 1201 (Fla. 4th DCA 2015) 

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

In this case, counsel for appellee did not question the witness as to 

whether each exhibit was “made at or near the time of the event” that it 

described. Id. (quoting Yisrael, 993 So. 2d at 956). Because this element 

was not established, admitting appellee’s documents into evidence under 

the business records exception was error.
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Additionally, it does not appear that appellee’s witness was qualified to 

lay the proper foundation for the introduction of the screenshot. 

Regarding who is qualified to testify for the purpose of authenticating 

business records, we have stated:

[T]he the fact that a witness employed all the “magic words” of 

the exception does not necessarily mean that the document is

admissible as a business record. Yang v. Sebastian Lakes 

Condo. Ass’n, 123 So. 3d 617, 621–22 (Fla. 4th DCA 2013).

To lay a foundation for the admission of a business record, 

it is not necessary for the proponent of the evidence to call the 

person who actually prepared the business records. Cooper 

v. State, 45 So. 3d 490, 492 (Fla. 4th DCA 2010). “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.” Twilegar v. State, 42 So. 3d 177, 

199 (Fla. 2010) (quoting Forester v. Norman Roger, Jewell & 

Brooks Int’l, Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1992)). 

Stated another way, “the witness just need be well enough 

acquainted with the activity to provide testimony.” Cayea v. 

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

“To the extent the individual making the record does not have 

personal knowledge of the information contained therein, the 

second prong of the predicate requires the information to have 

been supplied by an individual who does have personal 

knowledge of the information and who was acting in the 

course of a regularly conducted business activity.” Brooks v. 

State, 918 So. 2d 181, 193 (Fla. 2005), receded from on other 

grounds by State v. Sturdivant, 94 So. 3d 434 (Fla. 2012).

Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So. 3d 432, 441 (Fla. 4th DCA 

2015).

In the context of a foreclosure action, a representative of a loan servicer 

testifying at trial is not required to have personal knowledge of the 

documents being authenticated, but must be familiar with and have 

knowledge of how the “company’s data [is] produced.” Glarum v. LaSalle 

Nat’l Ass’n, 83 So. 3d 780, 783 (Fla 4th DCA 2011); see also Cayea, 138 

So. 3d at 1217 (“Printouts of data prepared for trial may be admitted under 

the business records exception even if the printouts themselves are not 

kept in the ordinary course of business so long as a qualified witness 

testifies as to the manner of preparation, reliability, and 

trustworthiness.”). If a representative of a servicing agent testifying at trial 
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knows “how the data was produced,” and is “familiar with the bank’s 

record-keeping system and ha[s] knowledge of how the data was uploaded 

into the system,” the business records exception is satisfied. Weisenberg 

v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1111, 1112-13 (Fla. 4th DCA 

2012).

Although the witness had seen screenshots like the one entered into 

evidence before, he did not know anything about the process by which they 

were created, and admitted that the screenshot was not generated by any 

of the three servicing systems he was acquainted with. Finally, he stated 

that he believed the screenshot accurately reflected the date the 

endorsement was placed on the note based entirely upon a conversation 

he had with another employee he could identify only by first name. On 

these facts it cannot be said that this witness had sufficient knowledge to 

lay the foundation for the admission of the screenshot into evidence under 

the business records exception. See Ensler v. Aurora Loan Servs., No. 

4D14-351, 2015 WL 6496304, at *2 (Fla. 4th DCA Oct. 28, 2015) (stating 

that a “‘witness’s general testimony that a prior note holder follows a 

standard record-keeping practice, without discussing details to show 

compliance with section 90.803(6), is not enough to establish a foundation 

for the business records exception.’” (quoting Holt v. Calchas, LLC, 155 So. 

3d 499, 505 (Fla. 4th DCA 2015))).

Even if the screenshot had been properly admitted into evidence under 

the business records exception, this would have established only Suntrust 

Mortgage’s standing to foreclose, not appellee’s standing to bring this 

action. Although the witness provided testimony that Suntrust Mortgage 

placed the blank endorsement on the note before appellee filed suit, he did 

not state when appellee, the foreclosing party that actually filed the initial 

complaint, came into possession of the note.

“[P]ossession of the original note, indorsed in blank, [is] sufficient under 

Florida’s Uniform Commercial Code to establish that [a party is] the lawful 

holder of the note, entitled to enforce its terms.” Riggs v. Aurora Loan 

Servs., LLC, 36 So. 3d 932, 933 (Fla. 4th DCA 2010). We have repeatedly 

held that a party attempting to prove standing based upon possession of 

a note reflecting an undated, blank endorsement must prove that it had 

possession of the instrument at the time the initial complaint was filed. 

See, e.g., Snyder v. JP Morgan Chase Bank, Nat’l Ass’n, 169 So. 3d 1270, 

1273 (Fla. 4th DCA 2015) (stating that where note contained an undated, 

blank endorsement, “the plaintiff seeking to foreclose on a note must be in 

possession of the note prior to institution of the suit, whether as the holder 

or having the rights of the holder”). A failure to provide sufficient proof of 

standing warrants reversal. See, e.g., Peoples v. Sami II Trust 2006-AR6, 
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No. 4D14-2757, 2015 WL 5948218, at *2 (Fla. 4th DCA Oct. 14, 2015) 

(reversing and remanding case for entry of final judgment in favor of 

borrower where appellee failed to establish standing to foreclose); Synder, 

169 So. 3d at 1274 (reversing and remanding where lender “did not prove 

that it had possession of the note when it filed suit, and in fact showed 

that it did not have possession”); Lloyd v. Bank of N.Y. Mellon, 160 So. 3d 

513, 515-16 (Fla. 4th DCA 2015) (reversing and remanding case for “entry 

of a judgment in favor of the Defendants” where bank’s standing to 

foreclose was not supported by competent substantial evidence).

Even though appellee’s witness claimed that Suntrust Mortgage was a 

wholly owned subsidiary of appellee, the fact that a subsidiary may have 

standing to foreclose does not automatically establish that its parent 

company also has standing, absent evidence more substantial than a 

witness’ testimony regarding the existence of a parent-subsidiary 

relationship. As we recently noted:

The original lender under the note and mortgage was 

Chase Bank, USA, N.A. There was no evidence that the note 

and mortgage were ever transferred from Chase Bank to 

JPMorgan Chase. Although there was testimony at trial that 

Chase Bank is a wholly owned subsidiary of JPMorgan Chase, 

“[a] parent corporation and its wholly-owned subsidiary are 

separate and distinct legal entities. . . . As a separate legal 

entity, a parent corporation . . . cannot exercise the rights of 

its subsidiary.” Am. Int’l Group, Inc. v. Cornerstone Bus., Inc., 

872 So. 2d 333, 336 (Fla. 2d DCA 2004); see also Federated 

Title Insurers, Inc. v. Ward, 538 So. 2d 890, 891 (Fla. 4th DCA 

1989). Thus, ownership of the note by subsidiary Chase Bank 

does not give parent corporation JPMorgan Chase the right to 

enforce the note, absent evidence that JPMorgan Chase 

acquired such a right through, for example, a purchase or 

servicing agreement.

JPMorgan Chase argues that it did acquire servicing rights 

over the loan prior to the filing of the complaint, relying on a 

notice of servicing transfer filed in the court file. This 

document is not competent evidence, however, because it was 

never authenticated and admitted into evidence at trial.

Wright v. JPMorgan Chase Bank, N.A., 169 So. 3d 251, 251-52 (Fla. 4th 

DCA 2015).
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In this case appellee failed to lay a sufficient foundation for the 

admission of its records into evidence under the business records 

exception. Moreover, even if appellee had done so, the witness was not 

qualified to lay the necessary foundation for admitting the screenshot into 

evidence because he was not familiar with the system that generated that 

document. Because this erroneously admitted evidence was necessary for 

appellee to prove not only its standing to foreclose, but also the 

outstanding balance on the loan and its compliance with the conditions 

precedent to foreclosure as outlined in the mortgage, the final judgment 

must be reversed for entry of judgment in favor of appellants.

Reversed and Remanded.

STEVENSON and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.