players enormous corporations with
scores of divisions and departments, tens
of thousands of employees, and trillions
of dollars in annual transactions.
of evidence apply to their disputes as
apply to a neighborhood grocery's bounced
check case. One rule in particular
the business records rule has taken
center stage in some jurisdictions and is
becoming a powerful weapon for the little
guy defending against lawsuits brought
by giant corporations, such as mortgage
foreclosures.
of evidence. Most business records are
considered hearsay in court. The business
records rule is an exception to the hearsay
rule. The rationale behind the business
records exception is that businesses have
incentives to keep accurate, reliable
records.
business records qualify for admission
if it: (a) was made at or near the time of
the transaction or event recorded in it;
(b) is based on information reported by a
person with first-hand knowledge of the
transaction or event; (c) was made as a
regular practice of the business; (d) was
made and kept in the ordinary course of
business.
of the business records exception,
records stored electronically are also
subject to evolving rules on electronically
stored information (ESI). With all these
requirements, it would seem that getting
electronically stored business records
admitted in court would be a tall order.
But courts have tended to be lenient.
business records to be admitted in court.
Often lawyers agree to each other's
business records being admitted. When
admissibility is challenged, judicial
standards vary, but more courts tend
toward a lenient approach.
the most lenient positions [appeals]
courts have taken in accepting electronic
[business] records as authentic and
the most demanding requirements that
have been imposed... more courts have
tended towards the lenient rather than the
demanding approach."
admission of business records,
homeowners in foreclosure have found an
apparent Achilles' heel in the mortgage
industry: their business records.
Several homeowners in Florida have
recently won reversals of their mortgage
foreclosures on appeal because the cases
were based on business records that
failed to satisfy the business records rule.
Despite the bar being low, giant financial
institutions have tripped over it and had
their foreclosure judgments reversed and
their cases thrown out of court.
In some cases, the records themselves
were fine, but the lenders' witnesses could
not testify to the four elements of the rule.
both trial and appellate courts. He regularly represents national
mortgage lenders, investors, loan servicers, local businesses,
high net worth individuals and pro bono clients. He chairs two
subcommittees in the Florida Bar's Real Property, Probate
and Trust Law Section one on Legislation and Government
Regulation of Lending and the second on Stale Mortgages.
101 Plaza Real South, Suite 207
Boca Raton, Florida 33432
Fax: 561.544.8999
padulahodkin.com