DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BANK OF NEW YORK, AS TRUSTEE FOR THE NOTEHOLDERS 

CWABS INC., ASSET BACKED NOTES SERIES 2006-SD4006-SD4,

Appellant,

v.

ANDREW CALLOWAY,

Appellee.

No. 4D13-2224

[January 7, 2015]

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

Beach County; Edward H. Fine, Judge; L.T. Case No. 

502008CA004784AW.

Erin M. Berger of Kelley Kronenberg, Tampa, for appellant.

Donna Greenspan Solomon of Solomon Appeals, Mediation & 

Arbitration, Fort Lauderdale and Roy D. Oppenheim, Geoffrey E. Sherman 

and Jacquelyn K. Trask of Oppenheim & Pilelsky, Weston, for appellee.

GILLESPIE, KENNETH, Associate Judge.

Appellant Bank of New York, as trustee for the Noteholders CWABS 

Inc., Asset Backed Notes Series 2006-SD4006-SD4 (“Bank of New York”), 

appeals the trial court’s order involuntarily dismissing its foreclosure 

action. Bank of New York maintains that the trial court abused its 

discretion in excluding the Borrower’s payment history since its witness 

laid a proper foundation under the business record exception. We agree 

and reverse. 

I. FACTS

In February 2008, Bank of New York filed a complaint seeking to 

foreclose upon a real property mortgage executed by the Borrower. The 

matter proceeded to a non-jury trial on May 8, 2013, during which Bank 

of New York centered its case around one witness—Jean Knowles—a 

litigation foreclosure specialist for its servicer, Resurgent Capital Services 
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LP (“Resurgent”). The vital purpose of calling Knowles was to lay a 

predicate for admitting Resurgent’s business records pertinent to the case. 

Knowles testified that Resurgent became the fourth servicer1 of the 

subject loan on November 16, 2012, more than five years after the 

Borrower’s alleged July 1, 2007 default. To effectuate the ownership 

change, the prior servicer—Bank of America—transferred to Resurgent the 

Borrower’s original loan documents along with its business records 

chronicling his complete payment history. Upon receipt, Resurgent 

reviewed the documents for accuracy before scanning them and inputting 

the payment information into its records system. 

Alongside this backdrop, Bank of New York attempted to introduce into 

evidence the Borrower’s “payment history”—a printed tabulation from 

Resurgent’s records laying out the Borrower’s monthly payments from the 

date the loan was executed. To lay a foundation to the business record, 

Knowles testified that: (1) the proffered document was “a true and accurate 

representation of the payment history for th[e] loan,” (2) it was “kept during 

the regular course of regularly-conducted activities by a person with 

knowledge of the event or activity,” (3) the “person making the record ha[d] 

a duty to accurately compile [the] information for th[e] record,” and (4) it 

is “the regular practice of the servicer to make such a record.” In addition, 

Bank of New York sought to introduce a document entitled “transaction 

dates,” which contained “the dates that the mortgage [wa]s first due, the 

maturity date, transaction dates,” and “what date [Resurgent] acquired it.” 

As to both documents, the Borrower’s counsel objected upon lack of 

foundation grounds and requested to voir dire the witness. During 

questioning, Knowles admitted that since Resurgent acquired the loan’s 

servicing rights five years after the Borrower’s alleged default, the payment 

history contained in its records derived from the documents transferred to 

it by Bank of America. Notwithstanding, Knowles conceded she never 

worked for Bank of America and thus did not know how Bank of America 

recorded its payment information, who at Bank of America input the 

records, whether that information was entered in the regular course of 

Bank of America’s business activity, and whether the person who inputted

that information did so with knowledge of its contents. 

Relying upon this testimony, the Borrower’s counsel argued the two 

proffered documents constituted inadmissible hearsay since Knowles 

1The previous three servicers which made up this relay team were US Money 

Source, Countrywide, and Bank of America 
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lacked personal knowledge regarding Bank of America’s processes for 

obtaining and recording loan information. Bank of New York responded 

that Knowles laid a sufficient predicate under the business records 

hearsay exception by establishing her familiarity with Resurgent’s 

business records and testifying that Resurgent reviews the accuracy of all 

information transferred to it upon acquiring a loan. 

The trial court sustained the Borrower’s hearsay objection, barring 

Bank of New York from introducing any evidence. In so ruling, the trial 

court found that although Knowles established that the records acquired 

from Bank of America were “accurate insofar as they [we]re the records 

she got from the prior servicer,” Bank of New York failed to provide a 

witness with knowledge of Bank of America’s record-making processes. 

Since Knowles lacked such knowledge, the trial court found it was 

incumbent upon Bank of New York to have “somebody who is 

knowledgeable about the prior servicers . . . come and explain . . . their 

records.” 

Thereafter, Bank of New York called the Borrower to establish his 

payment history. The Borrower testified that he did not feel obligated to 

pay his outstanding indebtedness because Bank of New York’s “paperwork 

is awful.” Furthermore, the Borrower testified that the payment history 

report was inaccurate, since he made several payments between June 

2006—the date he executed the loan—and November 1, 2006—his first 

listed payment date. At the conclusion of the testimony, the Borrower 

moved for a motion for involuntary dismissal with prejudice due to Bank 

of New York’s inability to prove the amounts due under the loan. The trial 

court granted the Borrower’s motion for involuntary dismissal noting that 

it could not “figure out what the balance is.” 

Two weeks later, on May 21, 2013, the trial court entered a written 

order memorializing its ruling that Knowles’ “testimony concerning the 

subject loan prior to November 18, 2012, constituted . . . inadmissible 

hearsay.” As justification, the trial court’s order noted that Knowles “was 

not familiar with the prior servicer’s business practices or procedures,” 

that she “was unable to testify as to the accuracy of the prior servicer’s 

business records,” and that she “did not know who, how or when the data 

entries were made into the prior servicer’s business records.” The trial 

court found that Knowles “could not provide the requisite evidentiary 

foundation for any business records of the prior servicers with respect to 

the subject loan.” Following the denial of Bank of New York’s motion for 

rehearing, this appeal ensued. 

 

II. ANALYSIS
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The standard of review for evidentiary rulings is abuse of discretion, 

limited by the rules of evidence. See Yang v. Sebastian Lakes Condo. Ass’n, 

123 So. 3d 617, 620 (Fla. 4th DCA 2013). The trial court’s granting of a

motion for involuntary dismissal is reviewed de novo. See Deutsche Bank 

Nat’l Trust Co. v. Huber, 137 So. 3d 562, 563 (Fla. 4th DCA 2014)

Section 90.803(6), Florida Statutes (2008), “provides a hearsay 

exception for records of regularly conducted business activity.” A.S. v. 

State, 91 So. 3d 270, 271 (Fla. 4th DCA 2012). To admit business record 

evidence under this subsection, the proponent must demonstrate: (1) that 

the record was made at or near the time of the event; (2) that it was made 

by or from information transmitted by a person with knowledge; (3) that it 

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

foundation may be established in one of three ways:

“First, the proponent may take the traditional route, which 

requires that a records custodian take the stand and testify 

under oath to the predicate requirements.” [Yisrael, 993 So. 

2d at 956] (citing § 90.803(6) (a), Fla. Stat. (2004)). “Second, 

the parties may stipulate to the admissibility of a document 

as a business record.” Id. “Third and finally, since July 1, 

2003, the proponent has been able to establish the businessrecords predicate through a certification or declaration that 

complies with sections 90.803(6)(c) and 90.902(11), Florida 

Statutes (2004).” Id. at 957.

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

When employing this first option, “it is not necessary to call the individual 

who prepared the document”; however, “the witness through whom [the] 

document is being offered must be able to show each of the requirements 

for establishing a proper foundation.” Mazine v. M & I Bank, 67 So. 3d 

1129, 1132 (Fla. 1st DCA 2011) (citation omitted); see also Hunter v. 

Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014). 

In reaching its decision, the trial court relied heavily on Glarum v. La 

Salle Bank National Association, 83 So. 3d 780 (Fla. 4th DCA 2011). In 

Glarum, this Court held that an affidavit of a loan servicing specialist was 

inadmissible under the business records exception because the specialist 

“had no knowledge of how his own company’s data was produced and he 

was not competent to authenticate that data.” Id. at 783 (emphasis 

added). Notably, the specialist in Glarum attested that he did not know 
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whether his business’s records were made in the regular course of 

business, whether the business made the data entries into its computer 

system, or who made the entries when the borrowers made payments. Id. 

at 782-83. Furthermore, the specialist relied upon data supplied by a prior 

servicer, “with whose procedures he was even less familiar.” Id. at 783. 

While this latter fact was relevant, the takeaway was that the “specialist 

had a total lack of knowledge as to how his company’s own data was 

produced.” Weisenberg v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1111, 

1112 (Fla. 4th DCA 2012) (distinguishing Glarum where the supervisor at 

the bank’s servicing agent’s deposition showed that she “knew how the 

data was produced” and “demonstrated that she was familiar with the 

bank’s record-keeping system and had knowledge of how the data was 

uploaded into the system”).

In a footnote, the Glarum court addressed concerns its holding could 

be interpreted as a blanket prohibition on lending institutions relying upon 

prior servicers’ loan records, stating:

The law does not require an affiant who relies on 

computerized bank records to be the records custodian who 

entered or created the data, nor must the affiant identify who 

entered the data into the computer. The law is also clear 

there is no per se rule precluding the admission of 

computerized business records acquired from a prior 

loan servicer.

83 So. 3d at 782 n.2 (emphasis added). 

While Glarum failed to set forth those circumstances justifying the 

admission of “computerized business records acquired from a prior loan 

servicer,” an illustration materialized in WAMCO XXVIII, Ltd. v. Integrated 

Electronic Environments, Inc., 903 So. 2d 230 (Fla. 2d DCA 2005), a case 

factually similar to this one. In that case, WAMCO presented “loan 

payment histories” to prove the amount due by corporate debtors under 

promissory notes. Id. at 233. Confronting a hearsay challenge, WAMCO’s 

vice president testified that the loans had been purchased from Bank of 

America, and that the “beginning numbers on the outstanding balances 

were the numbers received from Bank of America.” Id. While the vice 

president conceded that he did not know the specific person at Bank of 

America who inputted the information, he explained that “he knew how 

bank loan accounting systems worked and that the procedures were 

‘bank-acceptable accounting systems.’” Id. Further, the vice president 

described the process WAMCO used “to verify the accuracy of information 

received in connection with [the] loan purchases,” stating that employees 
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“go through the files, check [them] for . . . accuracy, . . . and then make 

an initial contact with the customer.” Id. 

The Second District held WAMCO’s records were properly admitted 

under the business records exception, noting that, although documents 

may be excluded under section 90.803(6) if “the sources of information or 

other circumstances show lack of trustworthiness,” the debtors “did not 

demonstrate, and nothing in the record establishe[d], that the loan 

information WAMCO received from Bank of America was suspect or 

untrustworthy or that the balances that WAMCO claimed as due were 

incorrect.” Id. (emphasis added). 

There has been confusion among litigants and jurists alike as to the 

applicability of the WAMCO decision. For example, one court has 

interpreted WAMCO as standing for the broad proposition that a lending 

institution may “lawfully rely on the records and loan transaction history

of a prior loan servicer.” In re Sagamore Partners, Ltd., No. 11-37867-BKCAJC, 2012 WL 3564014, at *4 (Bankr. S.D. Fla. Aug. 17, 2012). Others 

seem to hold that WAMCO’s process of verifying the accuracy of the 

received records independently established the exception’s foundational 

elements. See Holt v. Calchas, LLC, 39 Fla. L. Weekly D2305 (Fla. 4th DCA 

Nov. 5, 2014). It is our intention to shed some light on the subject. 

“The rationale behind the business records exception is that such 

documents have a high degree of reliability because businesses have 

incentives to keep accurate records.” Timberlake Constr. Co. v. U.S. Fid. & 

Guar. Co., 71 F.3d 335, 341 (10th Cir. 1995); see also United States v. 

Veytia-Bravo, 603 F.2d 1187, 1189 (5th Cir. 1979) (explaining that the 

justification for the business records exception lies in “the reliability or 

trustworthiness of the records sought to be introduced”). Businesses rely 

upon their records “in the conduct of [their] daily affairs” and “customarily 

check[ them] for correctness during the course of the business activities.” 

Charles W. Ehrhardt, Florida Evidence § 803.6 (2014 ed.)2; see also Bean 

v. Montana Bd. of Labor Appeals, 965 P.2d 256, 262 (Mont. 1998). Thus, 

courts view the “material contained in those records [a]s more likely to be 

truthful than the average hearsay.” United States v. Santos, 201 F.3d 953, 

963 (7th Cir. 2000).

2“Florida case law has recognized Professor Charles Ehrhardt’s discussion of 

controlling law regarding the business record exception.” Shorter v. State, 98 So. 

3d 685, 690 (Fla. 4th DCA 2012), rev. denied, 133 So. 3d 528 (Fla. 2014).
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Where a business takes custody of another business’s records and 

integrates them within its own records, the acquired records are treated 

as having been “made” by the successor business, such that both records 

constitute the successor business’s singular “business record.” United 

States v. Adefehinti, 510 F.3d 319, 326 (D.C. Cir. 2007), as amended (Feb. 

13, 2008).3 However, since records crafted by a separate business lack 

the hallmarks of reliability inherent in a business’s self-generated records, 

proponents must demonstrate not only that “the other requirements of 

[the business records exception rule] are met” but also that the successor 

business relies upon those records and “the circumstances indicate the 

records are trustworthy.” United States v. Childs, 5 F.3d 1328, 1333 (9th 

Cir. 1993); see also Brawner v. Allstate Indem. Co., 591 F.3d 984, 987 (8th 

Cir. 2010) (“[A] record created by a third party and integrated into another 

entity’s records is admissible as the record of the custodian entity, so long 

as the custodian entity relied upon the accuracy of the record and the 

other requirements of Rule 803(6) are satisfied.”); United States v. Duncan, 

3Where, as here, a Florida evidentiary rule is patterned after its federal 

counterpart, “federal cases interpreting comparable provisions are persuasive 

and routinely looked to for interpretive guidance.” Carriage Hills Condo., Inc. v. 

JBH Roofing & Constructors, Inc., 109 So. 3d 329, 334 n.1 (Fla. 4th DCA) rev. 

dismissed, 130 So. 3d 692 (Fla. 2013). In that regard, Federal Rule of Evidence 

803(6) provides as follows:

(6) Records of a Regularly Conducted Activity. A record of an act, 

event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from 

information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted 

activity of a business, organization, occupation, or calling, 

whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification 

that complies with Rule 902(11) or (12) or with a statute 

permitting certification; and

(E) the opponent does not show that the source of 

information or the method or circumstances of preparation 

indicate a lack of trustworthiness.
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919 F.2d 981, 986-87 (5th Cir. 1990); Air Land Forwarders, Inc. v. United 

States, 172 F.3d 1338, 1342-44 (Fed. Cir. 1999); United States v. BuenoSierra, 99 F.3d 375 (11th Cir. 1996). This principle is codified within 

section 90.803(6) itself, which provides trial courts the ability to exclude 

documents otherwise fitting the business records exception where “the 

sources of information or other circumstances show lack of 

trustworthiness.” § 90.803(6)(a), Fla. Stat. (2008).

Given this trustworthiness threshold, mere “‘reliance by the 

[incorporating business] on records created by others, although an 

important part of establishing trustworthiness, without more is’” 

insufficient. State v. Fitzwater, 227 P.3d 520, 532 (Haw. 2010) (quoting 2 

Kenneth S. Broun et al., McCormick on Evidence § 292, at 318 (6th ed. 

2006)). In most instances, a proponent will clear this hurdle by providing 

evidence of a business relationship or contractual obligation between the 

parties that ensures a substantial incentive for accuracy. See, e.g., Matter 

of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir. 1981) (“[B]usiness 

records are admissible if witnesses testify that the records are integrated 

into a company’s records and relied upon in its day-to-day operations.”

(citations omitted)); White Indus., Inc. v. Cessna Aircraft Co., 611 F. Supp. 

1049, 1061 (W.D. Mo. 1985) (finding the “indicia of trustworthiness” 

apparent “where the reporting duty arises by way of a continuing business 

relationship between two independent business entities”). In the 

alternative—as tacitly applied in WAMCO—the successor business itself 

may establish trustworthiness by independently confirming the accuracy 

of the third-party’s business records upon receipt. See, e.g., Simien v. 

Unifund CCR Partners, 321 S.W.3d 235, 243 (Tex. App. Houston [1 Dist.] 

2010) (“[A] document created by one business may become the records of 

a second business if the second business ‘determines the accuracy of the 

information generated by the first business.’” (quoting Martinez v. Midland 

Credit Mgmt., Inc., 250 S.W.3d 481, 485 (Tex. App.-El Paso 2008, no pet.)). 

In any of the abovementioned circumstances, the sufficiency of the 

evidence is left to the trial court’s discretion. 

In the case at bar, Knowles confirmed the trustworthiness of the reliedupon third-party business records by testifying that Resurgent “reviewed” 

Bank of America’s supplied payment histories “for accuracy” before 

integrating them into its own records. See WAMCO, 903 So. 2d at 233; 

Simien, 321 S.W.3d at 243. Particularly, Knowles testified that Resurgent 

became the fourth servicer of the subject loan on November 16, 2012, more 

than five years after the Borrower’s alleged July 1, 2007 default. To 

facilitate the ownership change, Bank of America transferred to Resurgent 

the Borrower’s original loan documents along with its business records 

chronicling his complete payment history, which Resurgent reviewed for 
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accuracy before scanning them and inputting the payment information 

into its records system. 

Nevertheless, even had Knowles not so testified, the circumstances of 

the loan transfer itself would have been sufficient to establish 

trustworthiness given the business relationships and common practices 

inherent among lending institutions acquiring and selling loans. As the 

Supreme Court of Massachusetts has explained:

“[T]he problem of proving a debt that has been assigned 

several times is of great importance to mortgage lenders and 

financial institutions.” New England Sav. Bank v. Bedford 

Realty Corp., 246 Conn. 594, 607, 717 A.2d 713 (1998). Given 

the common practice of banks buying and selling loans, we 

conclude that it is normal business practice to maintain 

accurate business records regarding such loans and to 

provide them to those acquiring the loan. See Wingate v. 

Emery Air Freight Corp., [432 N.E.2d 474 (Mass. 1982)]. See 

also United States v. Samaniego, 187 F.3d 1222, 1224 n.1 

(10th Cir. 1999) (including bank records in “class of records 

commonly viewed as particularly trustworthy”); Federal 

Deposit Ins. Corp. v. Staudinger, 797 F.2d 908, 910 (10th Cir. 

1986), quoting Weinstein’s Evidence at 803–178 (1985) 

(“foundation for admissibility may at times be predicated on 

judicial notice of the nature of the business and the nature of 

the records . . . particularly in the case of bank and similar 

statements”). Therefore, the bank need not provide testimony 

from a witness with personal knowledge regarding the 

maintenance of the predecessors’ business records. The 

bank’s reliance on this type of record keeping by others 

renders the records the equivalent of the bank’s own records. 

To hold otherwise would severely impair the ability of 

assignees of debt to collect the debt due because the 

assignee’s business records of the debt are necessarily 

premised on the payment records of its predecessors.

Beal Bank, SSB v. Eurich, 831 N.E.2d 909, 914 (Mass. 2005).

As applied to this case, the Borrower urges this Court to find 

Resurgent’s payment history records presumptively untrustworthy since 

he testified some of his payments were unaccounted for. For the reasons 

noted above, this discrepancy should not bar foreclosure. Here, the 

Borrower is not contending that he is not in default, but only that some of 

his payments were not accounted for—mainly payments between June 
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2006, the date he executed the loan, and November 1, 2006, his first listed 

payment date. Giving the Borrower the benefit of the doubt and utilizing 

December 2006 as the date the Borrower defaulted on his loan does not 

change the fact that the Borrower is in default. This foreclosure action 

was brought in February of 2008, some 18 months after the Borrower 

executed the loan; trial commenced on May 8, 2013, some 83 months 

following the execution of the loan by the Borrower. As such, the trial 

court has broad discretion to reconcile any discrepancies, if warranted, 

based on the evidence presented. Minor discrepancies in calculations, 

given the volumes of records transferred from one business entity to 

another, should not render business records of a successor servicer 

untrustworthy for purposes of laying a foundation for the business record 

exception given that the trustworthiness of the records has been 

established. 

Our decision in this case, and on this record, should not be construed 

as a “green light” for lenders to present a “robo” witness to establish the

business record exception. As discussed previously, admission of a 

business record is predicated on the proponent demonstrating (1) that the 

record was made at or near the time of the event, (2) that it was made by 

or from information transmitted by a person with knowledge, (3) that it 

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. See Yisrael, 993 So. 2d at 956. The requirements of reliance and 

trustworthiness do not supplant this rule’s provisions; “rather, we view 

them as necessary in these circumstances to satisfy the rule’s requirement 

that the records were made in the course of a regularly conducted activity

of the incorporating entity.” Fitzwater, 227 P.3d at 534 (internal quotation 

omitted).

III. CONCLUSION

It is well-settled that a record custodian who has been called to testify 

under oath need not be the actual person who prepared the document, 

but he or she must demonstrate knowledge of each requirement for 

establishing the business record foundation. Here, Bank of New York 

attempted to introduce into evidence the Borrower’s payment history. 

Knowles was called as the records custodian and established the requisite 

knowledge and foundation for the admission of Resurgent’s business 

records pursuant to the business record exception contemplated by Rule 

90.803(6). Specifically, Knowles testified to the transmittal of the 

Borrower’s records from Bank of America to Resurgent which included the 

Borrower’s original loan documents along with its business records 

chronicling his complete payment history. Knowles testified that these 
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documents were reviewed for accuracy before Resurgent scanned them

and inputted the payment information into its records system. Further, 

Knowles laid a foundation to the business record exception by testifying 

(1) that the proffered document was “a true and accurate representation 

of the payment history for th[e] loan,” (2) that it was “kept during the 

regular course of regularly-conducted activities by a person with 

knowledge of the event or activity,” (3) that the “person making the record 

ha[d] a duty to accurately compile [the] information for th[e] record,” and 

(4) that it is “the regular practice of the servicer to make such a record.”

Knowles’s testimony, in and of itself, was sufficient to clear the

Borrower’s lack of foundation and hearsay objections. Notably, the 

Borrower argues that Resurgent’s payment history relating to payments 

made by him is inaccurate and, therefore, untrustworthy since he testified 

some of his payments were unaccounted-for. In the circumstances 

presented, as long as a business entity’s records obtained from prior 

servicers establish trustworthiness—i.e., that the records are what they 

purport to be and were subject to the business’ internal practices and 

procedures to ensure accuracy of the records—the records are cleared for 

admission and satisfy the business record exception to hearsay. 

This Court is cognizant of the trial court’s diligence in attempting to 

synthesize the various cases decided among the district courts in 

foreclosure litigation in so ruling; however, because Knowles satisfied the 

business records requirements under 90.806(6), and demonstrated 

knowledge of the accuracy of the records as espoused in Holt, 39 Fla. L. 

Weekly at D2305, a recent case decided by this Court, we reverse and 

remand for a new trial. 

Reversed and Remanded.

DAMOORGIAN, C.J., and STEVENSON, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.