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77 foundation because this would be inconsistent with the plain language of the statute." e conflict before the court originally arose from a 2015 nonjury foreclosure trial where the lender, Household Finance Corp III, through counsel, sought to admit business records relating to the borrowers' mortgage account into evidence under the business records exception to the hearsay rule. To admit the records, Household relied on testimony from a witness to authenticate and admit the records. Over a hearsay objection from the borrowers, the trial court admitted the records into evidence and ultimately entered a judgment of foreclosure in favor of Household. e borrowers appealed. Florida's Second District Court of Appeal found that the trial court properly admitted the records. In doing so, the Second District certified conflict with the Fourth District Court of Appeal's opinion in Maslak v. Wells Fargo Bank N.A., 190 So.3d 656 (Fla. 4th DCA 2016). In Maslak, the Fourth District held that the business records of the bank were inadmissible despite the proponent of the records testifying affirmatively to the four elements found in § 90.803(6), Fla. Stat. According to the Fourth District, the witness in Maslak had failed to testify in detail about the servicer's record keeping system notwithstanding her ability to affirmatively answer the "four prongs" required in the evidence code. e Florida Supreme Court's approval of Jackson and disapproval of Maslak explains why a minimal testimonial foundation is both appropriate in the context of the case presented and desirable in the terms of fairness and the efficient administration of justice. First, the testimony of the records custodian or qualified witness laying the foundation is relevant only to the authenticity of the business records. Anything additional prolongs a trial making the process inefficient and cluttering the record with additional and unnecessary testimony. Second, the purpose of calling a records custodian or qualified witness is to authenticate the documents needed to prove its allegations, not anything more. e laying of the foundation is intended to confirm the documents are indeed business records. e proponent's record keeping systems are not what is on trial. Instead, the business records themselves are introduced to establish the material facts of the proponent's actual case that is being tried. As held by the Florida Supreme Court, by requiring more to lay the appropriate foundation would make the process more complex, which is not consistent with the objective of making litigation as efficient as possible. e opinion is available on the Florida Supreme Court's website at floridasupremecourt.org/content/ download/639063/7264755/file/sc18-357.pdf. Matthew Ciccio is the Managing Litigation Attorney at McMichael Taylor Gray, LLC. His focus is on general and complex litigation, judicial foreclosure, commercial foreclosure, appellate work, title curative and insurance claims, landlord-tenant litigation, consumer financial services, and creditor defense, including FDCPA defense. e depth of Ciccio's knowledge and experience allows him to provide big-picture advice to banks, credit unions, investors, and mortgage servicers, helping clients control costs, avoid expensive disputes whenever possible and efficiently resolving issues when they arise.

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