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 defense that Bank of America failed to comply with mailing a notice of default under paragraph 22 of the mortgage.
At trial, over objection, Bank of America presented a customer representative with no first-hand knowledge of the mailing, who testified she had reviewed a document in the Bank's computer system indicating the letter had been mailed. That document was never introduced into evidence, and her testimony did not explain the mailing procedures used.
On appeal, the Fifth District reversed, ruling the evidence was not substantial, competent evidence of mailing. A mortgagee may prove a default letter was sent through: (1) testimony of a witness with personal knowledge; (2) evidence of a routine business practice for drafting and mailing; or (3) record evidence such as an affidavit or return receipt — none of which were present here.
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