WITNESS TESTIMONY REGARDING REVIEW OF COMPUTER SCREEN NOT ADMITTED INTO EVIDENCE IMPROPER

The Fifth District Court of Appeals for Florida recently ruled that testimony of a witness regarding a review of a computer screen which was not admitted into evidence was improper.

In Cook v. Bank of America, N.A., 2021 WL 1148816 (Fla. 5th DCA 2021), the Appellants raised the affirmative defense that Appellee, Bank of America, failed to comply with mailing a notice of default pursuant to paragraph 22 of the mortgage. At trial, over the Appellants’ objections, Bank of America presented the testimony of a customer representative who had no first-hand knowledge regarding the mailing of the notice of default. Rather, the witness testified that she had reviewed information in a document, in Bank of America’s computer system, which indicated the letter had been mailed. However, the document referenced by the witness was not introduced into evidence.

While the witness testified that she was familiar with the Bank’s business practices, her testimony did not include an explanation of the mailing procedures used in order to send the notice of default. No other evidence, such as affidavit of mailing, mail logs, or return receipts, were offered into evidence.

The trial court entered final judgment in favor of the Bank. Upon appeal, the Fifth District Court reversed the final judgment, ruling that the evidence submitted at trial was not substantial, competent evidence proving the mailing of the notice of default by the Bank. The Court noted that a mortgagee may prove that a default letter was sent by providing: (1) the testimony of a witness with personal knowledge that a default letter was sent; (2) evidence of a routine business practice of the entity drafting and mailing the letter; or (3) evidence in the record such as an affidavit or a return receipt to prove that the letter was sent. Here, none of these were presented or entered into evidence. Furthermore, the Court found that where, as here, a timely hearsay objection is made, a witness may not testify about the contents of a business record if that record was not properly introduced into evidence.

Plaintiff’s bar should note that witness testimony regarding the mailing of a notice of default should include (a) personal knowledge testimony of the default letter being sent; or (b) testimony of the entity’s specific routine business practice and procedures for drafting and mailing the notice of default. Alternatively, record evidence may be admitted, such as a return receipt or mailing logs, which prove that the letter was sent.