MASLAK QUACKS BACK: “TESTIMONY REGARDING THE BUSINESS RECORD EXCEPTION WAS INCOMPLETE!”

MASLAK v. WELLS FARGO, Nos. 4D14-4672, 4D14-4673 and 4D14-4707 [April 6, 2016]

Following Maslak’s default on three loans, Wells Fargo foreclosed.  The cases, consolidated for trial, resulted in three final judgments, each of which was appealed and further consolidated.  The sole issue presented was whether the bank had properly introduced evidence in accordance with the business records exception – in order to overcome Maslak’s hearsay objections.  Not unusual, the records in question were printed screen shots of the payment histories.  It was not necessary for the bank to present the person who actually prepared the business records.  However, the witness was unable to testify that the information was supplied by someone who had personal knowledge and created the records “in the course of a regularly conducted business activity.”  Although, the witness did testify as to each of the four elements underlying a business records exception, just saying the “magic words” was not enough.  The witness was unable to testify as to whether someone at the office of the attorneys representing the bank could have changed the records, nor did she know how the payments were received and processed.  Judgments were reversed and the case was remanded for further proceedings.