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49 » VISIT US ONLINE @ DSNEWS.COM Once a defendant contests the plaintiff 's standing as the proper party to enforce a note via foreclosure, the plaintiff 's right to bring suit on the note . . . becomes a disputed issue of mate- rial fact the plaintiff must prove … [i]t is not inequitable to require a plaintiff to prove its case, beginning with its standing to bring the action at the outset when that status is challenged. Ham v. Nationstar Mortgage, LLC. It is axiomatic that in a foreclosure case, the plaintiff must prove that it had standing to foreclose when the complaint was filed. Sosa v. BONY. One sees the same phenomenon with respect to satisfaction of conditions precedent. Back to the Florida Supreme Court and Custer: "[A] defend- ing party's assertion that a plaintiff has failed to satisfy conditions precedent to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense for which the defensive pleader has the burden of pleading and persuasion." In fact, the Florida Supreme Court's standard mortgage foreclosure complaint form does not include any allegation by the plaintiff that it satisfied all conditions precedent prior to filing suit. Yet Florida's ird DCA, among oth- ers, has found "[i]t…axiomatic that in a mortgage foreclosure action a plaintiff must plead and prove the occurrence of all conditions precedent." Smith v. Edwards. With respect to invoking the business records exception to the hearsay rule, again Florida courts hold foreclosing plaintiffs to a higher standard than that of their counterparts in other areas of civil practice. Nearly a century ago, Judge Learned Hand wrote: e routine of modern affairs, mercantile, financial and industrial, is conducted with so extreme a division of labor that the transac- tions cannot be proved at first hand without the concurrence of persons each of whom can contribute no more than a slight part, and that part not dependent on his memory of the event. Records, and records alone, are their adequate repository, and are in practice accepted as accurate upon the faith of the routine itself, and of the self-consistency of their contents. Unless they can be used in court without the task of calling those who at all stages had a part in the transactions recorded, nobody need ever pay a debt, if only his creditor does a large enough business. Massachu- setts Bonding v. Norwich. Although Massachusetts Bonding is a federal case, the state rules are modeled after the federal rules and, as the Fourth DCA has acknowledged, "[t]he federal courts' interpretation of the Federal Rules of Evidence may be relied upon as a persua- sive authority when interpreting the correspond- ing provisions of the Florida Evidence Code." Rich v. Kaiser. Notably, Federal Rule "803(6) allows business records to be admitted 'if witnesses testify that the records are integrated into a company's records and relied upon in its day to day operations.'" United States v. Jakobetz; Air Land Forwarders v. United States (Business records of one business become business records of successor when they are integrated into successor's business records and relied upon). And the federal Rules "favor[] the admission of evidence rather than its exclusion if it has any probative value at all." United States v. Carranco. With respect to foreclosures, Florida state courts tend to impose a notably stricter standard. In Cassell v. Green Planet, for example, the Fifth DCA reiterated: is Court has previously determined that, in a foreclosure proceeding, a witness can only authenticate another entity's records if the witness can ' demonstrate familiarity with the record- keeping system of [the] business that prepared the document and knowledge of how the data was uploaded into the system.' In the First DCA case of Hunter v. Aurora, the original note owner transferred the note to another bank. e bank's witness testified he had worked in the residential mortgage industry for fifteen years, three of them at Lehman Brothers where he had become familiar with the original note owner's practices and procedures. He testified that, upon sale of the loan and mortgage, the original note owner would send electronic versions of the pertinent documents to the new owner, de- termine a post-sale "transfer date" on which loan servicing would transfer from its servicer to the new owner's servicer, and retain possession of the original note and mortgage until the transaction was fully completed. He also confirmed that this practice was standard across the industry. e trial court entered judgment for the bank. On appeal, the First DCA reversed, finding the bank's witness unqualified to lay the predicate for the admission of business records prepared by the original note owner. Central to the DCA's opinion was that the witness was neither a current nor former employee of the original note owner and lacked "particular" knowledge of its record- keeping procedures. e DCA found that the witness's testimony "only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing" and, therefore, should never even have been admitted into evidence, let alone given any consideration. us, what the trial judge found sufficient to warrant foreclosure, the appellate court found, literally, worthless. Other states are more farsighted. Recognizing the importance to mortgage lenders and financial institutions of debts assigned several times over, the Supreme Judicial Court of Massachusetts wrote: Given the common practice of banks buying and selling loans, we conclude that it is normal business practice to maintain accurate business records regarding such loans and to provide them to those acquiring the loan (citations omitted). erefore, the bank need not provide testimony from a witness with personal knowledge regard- ing the maintenance of the predecessors' business records. e bank's reliance on this type of record keeping by others renders the records the equiva- lent of the bank's own records. To hold otherwise would severely impair the ability of assignees of debt to collect the debt due because the assignee's business records of the debt are necessarily pre- mised on the payment records of its predecessors. Beal Bank v. Eurich Regardless of whether and how the Florida Supreme Court resolves the Bollettieri/Hicks conflict, it is unlikely to address these other issues because, as a general rule, civil cases reach the Florida Supreme Court only when one DCA certifies a direct conflict with another DCA or certifies to the Florida Supreme Court that the question presented is of such "great public impor- tance" that it warrants Florida Supreme Court resolution. Either is unlikely given the virtual unanimity among the DCAs as to the issues discussed herein and the amorphous standard of review applied to the business records exception to the hearsay rule. Even then, the Florida Supreme Court has no obligation to resolve the issue(s); it can merely decline jurisdiction. Meanwhile, foreclosing plaintiffs in Florida will continue to be held to a higher standard than their counterparts in other areas of civil practice in Florida, in other states, and in the federal courts. "Instead of requiring defendants to raise and prove their affirmative defenses, the burden of overcoming affirmative defenses is often shifted to the foreclosing plaintiff who now must disprove affirmative defenses as part of its case in chief."

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