Courts are now seeming to favor homeowners in cases of what is called “business records” and the “custodian” of the records, where the foreclosing bank cannot present a witness who qualifies as a custodian of the business records concerning lack of payment by the homeowner.
Under Florida Rule of Civil Procedure 90.803(^) a hearsay exception exists for Records of Regularly Conducted Business Activity, as follows:
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
As mortgages are regularly assigned between banks, often more than once, the lawyers for the assignee banks have been instructing these witnesses chosen specifically to testify on the issue as to what to say. These witnesses have no personal knowledge of how the records were kept by the previous bank, and are therefore called “Robo-Witnesses'”, similar to “Rob-Signing” where bank lawyers were notarizing documents without the presence of the person whose signature was being notarized (an illegal act).
Witnesses in these cases as the custodian of the records should have first hand knowledge of the accuracy and origin of the business records concerning the mortgage, the note, and the foreclosure
Recent decisions have also indicated a willingness to dismiss foreclosure cases for good against the bank in the case of the inability to provide a custodian of the records to provide proof of payments or lack thereof, how the records were kept, whether they were kept in the ordinary course of business, etc..
If these decisions stand (at the writing of this there is approximately 30 days for the banks to file a motion for a rehearing), they could favor of homeowners by requiring banks to provide the actual custodian of the records (which presumably they should have been doing in the first place).