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

DEUTSCHE BANK TRUST COMPANY 

AMERICAS, AS TRUSTEE FOR RESIDENTIAL 

ACCREDIT LOANS, INC., MORTGAGE 

ASSET BACKED PASS-THROUGH 

CERTIFICATES SERIES 2007-QS11, 

Appellant, 

v. Case No. 5D16-3486

CARLOS MERCED, JR. 

and ALETHEA MERCED, 

Appellees. 

________________________________/

Opinion filed March 2, 2018

Appeal from the Circuit Court for

Brevard County, 

John Dean Moxley, Jr., Senior 

Judge. 

William L. Grimsley and N. Mark New ll, 

of McGlinchey Stafford, Jacksonville, 

and Jennifer M. Chapkin of McGlinchey 

Stafford, Fort Lauderdale, for Appellant.

Mark P. Stopa, of Stopa Law Firm, 

Tampa, for Appellees. 

COHEN, C.J., 

Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit

Loans, Inc., Mortgage Asset Backed Pass-Through Certificates Series 2007-QS11

(“Deutsche Bank”), appeals a final judgment of involuntary dismissal entered in favor of 

Carlos Merced, Jr. and Alethea Merced. We reverse and remand for a new trial. 
2

In 2015, Deutsche Bank filed a complaint seeking to foreclose the Merceds’

residential mortgage. Before trial, the court entered a partial summary judgment finding 

that Deutsche Bank had standing to foreclose, and that ruling has not been challenged 

on appeal. The court held a non-jury trial on the remaining issues of compliance with 

conditions precedent and the amount due and owing on the note. 

At trial, Deutsche Bank presented Dorothy Thomas as a witness. Thomas is a 

corporate representative of PNC Bank, National Association S/B/M to National City 

Mortgage, a division of National City Bank (“PNC”), the servicer of the subject loan. 

Thomas testified that she had worked as a senior default litigation specialist for PNC since 

2009. She also testified that she had worked in the same position at a division of National 

City Bank since 1992. National City was the original servicer and merged with PNC in 

2009.

Thomas testified that she was familiar with the Merceds’ mortgage account based 

on her review of the payment history, correspondence such as PNC’s demand letter to 

the Merceds, system notes, and copies of the note, mortgage, and assignments that were 

contained in PNC’s system of record. She testified to the programs PNC used to maintain 

records and that the records in the system were true and accurate copies of what was 

scanned into PNC’s system.

Deutsche Bank then moved to enter a series of business record exhibits into 

evidence, including a limited power of attorney and a copy of a loan modification 

document. Thomas testified to recognizing and personally reviewing all of the proposed

documents, her familiarity with PNC’s and National City’s policies and procedures 

regarding the documents, that the documents were created near or at the time of the 
3

respective event by a person with knowledge, and to PNC’s duty to maintain the 

documents truthfully and accurately in its regular course of business. The Merceds 

stipulated to the entry of several of the documents into evidence but moved to exclude

the power of attorney for lack of foundation. The court excluded the power of attorney, 

finding that it did not qualify for the business records exception to hearsay. 

The Merceds then moved to strike Thomas as a witness based on the exclusion 

of the power of attorney, arguing that she lacked contractual authority to appear on behalf 

of Deutsche Bank. The court agreed and struck Thomas as a witness. Therefore, 

Deutsche Bank was unable to enter several business records into evidence, including a 

copy of the loan modification document. Ultimately, the trial court granted the Merceds’ 

motion for involuntary dismissal based on the absence of the loan modification document, 

concluding that it was unable to calculate the amount due and owing. This appeal 

followed.

The dispositive issue on appeal is that the trial court abused its discretion in striking 

Thomas as a witness based on the exclusion of the power of attorney. Proof of contractual 

authority to testify is not required for a witness to lay the foundation for the business 

records exception to hearsay because a witness may testify to matters within his or her 

personal knowledge. See U.S. Bank Nat’l Ass’n v. Clarke, 192 So. 3d 620, 621 n.1 (Fla. 

4th DCA 2016). Section 90.803(6), Florida Statutes, provides that business records may 

be “shown by the testimony of the custodian or other qualified witness” and does not 

impose the requirement that such individuals be contractually authorized to so testify.

1

 1 Although the power of attorney was excluded, it was irrelevant to Thomas’s ability 

to testify on behalf of PNC. The excluded power of attorney would be relevant to the issue 

of PNC’s standing to foreclose as servicer of the loan. See Russell v. Aurora Loan Servs., 
4

Thomas was a qualified witness, and the court abused its discretion in striking her 

testimony. Under the business records exception, a party must present the business 

record via one of the following: “(1) testimony of the records custodian or other qualified 

witness, pursuant to section 90.803(6)(a), Florida Statutes; (2) stipulation; or (3) 

certification or declaration . . . . [T]he authenticating witness need not be ‘the person who 

actually prepared the business records.’” Nationstar Mortg., LLC. v. Berdecia, 169 So. 3d 

209, 213 (Fla. 5th DCA 2015) (citations omitted). The party must then establish 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.” Id. at 212–13 (citing Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)). 

Thomas testified that she had worked as a senior default litigation specialist for 

National City and PNC for twenty-four years, that she was familiar with National City and 

PNC’s policies and procedures with respect to servicing loans, and that PNC was the 

servicer of the loan at issue. She also testified that she was familiar with the Merceds’ 

mortgage account, the documents in their account were created near or at the time of the 

occurrence of the event by a person with knowledge, PNC had a duty to maintain those 

documents truthfully and accurately, and PNC kept the documents in its regular course 

of business. Thus, Thomas’s testimony demonstrated sufficient personal knowledge of 

PNC’s business relationship with Deutsche Bank and PNC’s record-keeping system to 

 

163 So. 3d 639 (Fla. 2d DCA 2015) (finding that power of attorney by which trustee that 

owned mortgage loan granted limited powers to current loan servicer was insufficient to 

establish that prior loan servicer, and therefore current loan servicer, had standing to 

foreclose at the time it filed the foreclosure action). Here, however, PNC was not the party 

attempting to foreclose. 
5

lay the foundation for Deutsche Bank’s business records, including the dispositive copy 

of the loan modification document. Cf. Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 

4th DCA 2015) (finding that mortgagee’s witness laid a proper foundation to admit 

mortgagor’s payment history under the business records hearsay exception based on her 

“demonstrated knowledge of the accuracy of the records”).

We decline the Merceds’ invitation to treat the error in excluding Thomas as 

harmless. The effect of the court striking Deutsche Bank’s sole witness was to deny it the 

right to introduce dispositive evidence. See Dobson v. U.S. Bank Nat’l Ass’n, 217 So. 3d 

1173, 1174 (Fla. 5th DCA 2017) (explaining that the due process right to be heard 

includes the right “to introduce evidence at a meaningful time and in a meaningful 

manner,” as well as the right “to testify and call witnesses on [a party’s] behalf” (citations 

omitted)). Accordingly, we reverse and remand for a new trial. 

REVERSED AND REMANDED.

SAWAYA and BERGER, JJ., concur.