Mortgage
foreclosure — Evidence — Hearsay — Business records exception — Statute
allows for self-authentication of business records by means of a certification
or declaration from the custodian of the records — Trial court abused
discretion in sustaining objection to admissibility of certificate of
authenticity of business records on basis the certificate was untimely filed —
Plaintiff served reasonable written notice under statute when it filed its
notice of intent to offer evidence by means of certification or declaration —
Because defendants had ample time to conduct a deposition or file a motion
prior to trial objecting to the filing of the certificate, but failed to do so,
court should have found that defendants waived any objection to the
admissibility of the certificate

WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC., Appellant, v.
JUAN RAMON ALDAPE, ET AL., Appellees. 5th District. Case No. 5D15-369. Opinion
filed May 27, 2016. Appeal from the Circuit Court for Orange County, John H.
Adams, Senior Judge. Counsel: Ezra Scrivanich, of Scrivanich Hayes, Plantation,
for Appellant. Adam H. Sudbury, of Apellie Legal, Orlando, for Appellees.

(PER CURIAM.) Wilmington Savings Fund Society, FSB
(“Wilmington”), appeals the trial court’s order granting an involuntary
dismissal of the foreclosure case against Juan and Sandra Aldape (“Appellees”).
SunTrust Mortgage, Inc. (“SunTrust”), the previous servicer of the mortgage,
filed its mortgage foreclosure complaint on November 8, 2012. On November 20,
2014, Wilmington filed its notice of intent to offer evidence by means of
certification or declaration. On December 18, 2014, Wilmington filed a
Certificate of Authenticity of Business Records, in which a credit risk manager
at SunTrust declared that: 1) he was familiar with the business records related
to the mortgage; 2) he was the custodian of the records; 3) the records were
made at or near the time of the occurrence of the matters contained within by a
person with knowledge of the matters; 4) the records were kept in the course of
a regularly conducted business activity; and 5) the records were made by the
business as part of its regular practice. Wilmington attached several other
documents to the certificate, including the mortgage, the loan servicing notes,
the demand letter, and the payment history.

At trial on January 8, 2015, Wilmington offered the
certificate and attached documents into evidence. Appellees objected, arguing
that they had not gotten the opportunity to object to the admissibility of the
certificate prior to trial or to depose the SunTrust employee. Appellees
additionally argued that their counsel was on vacation at the time Wilmington
filed the certificate and thus unable to conduct a deposition. The trial court
sustained the objection, explaining that the certificate was untimely filed.

The attachments to the certificate in the instant case were
records of regularly conducted business activity and therefore admissible under
the hearsay exception of section 90.803(6), Florida Statutes (2014). Section
90.902(11), Florida Statutes (2014), allows for self-authentication of business
records by means of a “certification or declaration from the custodian of the
records.” The business records statute defines the proper method for offering
self-authenticated documents into evidence:

(c)
A party intending to offer evidence under paragraph (a) by means of a
certification or declaration shall serve reasonable written notice of that
intention upon every other party and shall make the evidence available for
inspection sufficiently in advance of its offer in evidence to provide to any
other party a fair opportunity to challenge the admissibility of the evidence .
. . . A motion opposing the admissibility of such evidence must be made by the
opposing party and determined by the court before trial. A party’s failure to
file such a motion before trial constitutes a waiver of objection to the
evidence, but the court for good cause shown may grant relief from the waiver.

§ 90.803(6)(c), Fla. Stat. (2014).

Based on the language of the statute, the trial court abused
its discretion when it found that the certificate was untimely filed.
Wilmington served “reasonable written notice” under the statute when it filed
its notice of intent to offer evidence by means of certification or declaration
on November 20, 2014. Wilmington subsequently filed the certificate on December
18, 2014, approximately three weeks prior to the date of the trial. Though
Appellees argued that their attorney was on vacation at the time the
certificate was filed, Appellees had ample time to conduct a deposition or file
a motion prior to trial objecting to the filing of the certificate. Appellees
chose to do neither. Under the statute, the trial court should have found that
Appellees waived any objection to the admissibility of the certificate. At that
point, Appellees would have had the opportunity to argue for relief from the
waiver by demonstrating good cause.

Because the trial court abused its discretion in ruling that
the certificate was inadmissible, we reverse the trial court’s order of
involuntary dismissal and remand the case for further proceedings.

REVERSED and REMANDED. (LAWSON, C.J., SAWAYA and BERGER,
JJ., concur.)