Bowin Law Group'sforeclosure attorney has defended more than 100 foreclosure trials over the past 2 years. We won many of those cases by excluding the Bank's loan records from evidence. A critical fact the bank must prove in a foreclosure is that the homeowner defaulted on the mortgage. The bank will ordinarily seek to accomplish this by introducing a "Loan Payment History", which shows all the payments and defaults on the account. In other cases, the bank seeks to introduce a summary of the Loan Payment History. These summaries (often referred to as Account Information Statements) are typically less than 2 pages long, whereas the Loan Payment History can be dozens of pages long. These summaries, however, are not necessarily admissible under the Florida Evidence Code. If the Bank in your foreclosure action seeks to use an Account Information Statement, consider the following arguments our foreclosure attorney recently made against the admissibility of the statement.
As a mere summary of records, the Account Information Statement is inadmissible under Florida EvidenceCode, §90.956.
Any party wishing to introduce into evidence a summary of its records must first comply with the requirements of Florida Evidence Code, §90.956. Specifically, §90.956 provides
Summaries.—When it is not convenient to examine in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness. The party intending to use such a summary must give timely written notice of his or her intention to use the summary, proof of which shall be filed with the court, and shall make the summary and the originals or duplicates of the data from which the summary is compiled available for examination or copying, or both, by other parties at a reasonable time and place. A judge may order that they be produced in court.
A plain reading of §90.956 reveals 4 essential requirements for admissibility of a summary of records:
- it must be inconvenient to examine in court the contents of voluminous writings or recordings;
- the proponent must give notice of the intent to use the summary;
- the proponent must make available the underlying data from which the summary was compiled; and
- the summary must be introduced by calling a qualified witness.
Fla. Stat. §90.956.
The Florida Supreme Court and this Court have determined that strict compliance with §90.956 is required before a summary of records may be admitted into evidence. InTallahassee Housing Authority v. Florida Unemployment Appeals Commission, 483 So.2d 413, 415 (Fla. 1986) the Florida Supreme Court reversed judgment because the proponent did not "comport with the strict requirement of section 90.956 that timely notice be given…" and because the "record contains no evidence that the underlying data from which the summary was compiled was made available to [the opposing party]." Similarly, in Batlemento v. Dove Fountain, Inc., 593 So.2d 234, 240 (Fla. 5th DCA 1992), this Court held:
Florida courts require strict compliance with the "timely written notice" requirement contained in this rule of evidence, especially where the record contains no evidence that the underlying data from which the summary was compiled was made available to the complainant.
The document routinely used by mortgage companies to establish a borrower's default and the amount due on the loan is a "loan payment history." See Burdeshaw v. Bank of New York Mellon, 2014 WL 5099352, 4 (Fla. 1st DCA 2014) ("[L]oan payment history printouts, if properly authenticated, are routinely admitted as a business record in foreclosure cases."). A loan payment history would necessarily show (i) the amounts and dates of all payments posted to the borrower's account, (ii) how the payments were applied, whether to principal, interest, taxes, insurance, or other charges, and (iii) any credits applied to the account.
In the instant case, the Account Information Statement contains none of this information, but instead merely summarizes, in one page, the Thomases' alleged payment defaults. The Thomases obtained the subject loan in June of 2006, with the first payment due on August 1, 2006. According to Bank of America's complaint and the Account Information Statement, the first alleged default did not occur until October 1, 2010. The Thomases, therefore, made more than four years of monthly mortgage payments before the alleged default. The barely one-page Account Information Statement completely omits the four years of payments and other credits made to the Thomases' account. The Account Information Statement does not provide a total amount or the number of payments made under the Note, nor does it disclose how the Thomases' prior four years of payments were applied.
The Account Information Statement is, at best, a synopsis or summary of the Thomases' loan payment history, a very limited summary at that. Because the Account Information Statement merely summarizes the data necessarily contained in the Thomases' loan payment history, Bank of America was required to meet the four essential requirements under §90.956 before admitting that summary. Bank of America did not meet any of the statute's four requirements.
First, it would not be inconvenient to review in court the "loan payment history" from which the Account Information Statement was derived. Far from being inconvenient, these loan payment histories are the documents typically used by banks to establish a mortgagor's payment default under a mortgage and the amount due on the loan. See, e.g., Burdeshaw v. Bank of New York Mellon, 2014 WL 5099352, 4 (Fla. 1st DCA 2014); WAMCO XXVIII, Ltd. v. Integrated Elec. Env'ts., Inc., 903 So.2d 230, 233 (Fla. 2d DCA 2005). Because the loan payment history would not be inconvenient to examine in court, it was improper for the trial court to consider the summary of the loan payment history contained in the Account Information Statement.
Second, Bank of America did not notify the Thomases of the intent to rely on the summary in lieu of the underlying business records. The only notice Bank of America provided as to the introduction of the Account Information Statement was when it attached the statement to its Affidavits of Indebtedness, the last of which was filed on the day of the summary judgment hearing. Attaching the Account Information Statement to its affidavit, however, does not notify the Thomases that Bank of America intends to rely solely on that summary without producing the data underlying the summary. Bank of America, therefore, did not meet the notice requirement of §90.956.
Third, the record contains no evidence that the underlying data from which the Account Information Statement was compiled was made available to the Thomases. For this reason alone, it was improper for the trial court to consider the summary contained in the Account Information Statement. See Batlemento v. Dove Fountain, Inc., 593 So.2d 234, 240 (Fla. 5th DCA 1992) (reversing in part a judgment where the record below did not show that the data underlying the summary was supplied before trial.).
The fourth and final requirement, the requirement to call a qualified witness to admit the summary, was also not met in this case. Indeed, the proponent of a summary is not allowed to call a witness at a hearing on a motion for summary judgment, which would explain why undersigned counsel could find no Florida cases allowing the use of a summary of records at a summary judgment hearing. The majority of cases allowing the admission of a summary involve trials or evidentiary hearings where the party creating the summary was available for voir dire and cross-examination. See e.g., Health Options, Inc. v. Palmetto Pathology Services, P.A., 983 So.2d 608, 616 (Fla. 3d DCA 2008); Bowmar Instrument Corp. v. Fid. Elecs., Ltd., Inc., 466 So.2d 344, 345 (Fla. 3d DCA 1985). In those cases, the opposing party was able to voir dire the witness as to how the summary was created and as to the data underlying the summary. If the summary is allowed at a summary judgment hearing by merely attaching the summary to an affidavit, the opposing party is denied the ability to voir dire the witness on the facts underlying the summary. This is especially harmful where the facts underlying the summary are not provided to opposing counsel in advance of the hearing. In essence, the opposing party is denied a fundamental right to cross-examine the witness against him regarding the creation and accuracy of the proposed summary. That could not be the intent of §90.956.
Surely, Bank of America should be required to supply more than a one-page summary of an eight-year payment history before foreclosing on someone's home, especially on summary judgment. Because Bank of America did not meet any of the four requirements for admitting a summary of records under §90.956, the Account Information Statement should not have been considered at the summary judgment hearing.
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