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Georgia Code section 24-9-902(11) reads in part: "A party intending to offer a record into evidence under this paragraph shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration;" The paragraph is referring to business records that are certified by affidavit in leiu of live testimony of the custodian of the record. My questions: How and when is this "written notice" typically given to the defendant? Is it after an answer is submitted to the complaint packet? How and when does the defendant typically get to "inspect" the evidence? If they don't follow this procedure, will it be possible to get any records not included in the summons packet to be thrown out, and have the case dismissed with prejudice? If it helps, the evidence that I am expecting/looking for is past credit card statements (which were not included in the complaint) and perhaps some print-outs of the "sale file" referenced in the bill(s) of sale from the complaint packet. Thank you!
In response to my Motion to Strike Plaintiff's Affidavit(which is the standard PRA affidavit), PRA is claiming the affidavit is admissible as evidence under AR rule of evidence 803(6) or (7). "Plaintiff has properly incorporated its predecessor in interest business records into its own business records. There is no prohibition against this practice. See Marshall Trucking Co. v. State, 23 Ark. App. 110 (1988)". Do I need to file a response to this, and if so, what argument do I use? I know this is not correct, and that you can't just use someone else's business records as your own, but I don't know how to present this. Cates v. State, 589 SW 2d 598 - Ark: Court of Appeals 1979 may also be of interest - it provides criteria for admission of business records. -josh Body of my Motion to Strike follows: 1. Plaintiff has submitted into evidence an affidavit claiming that the affiant has personal knowledge of business records related to the aforementioned alleged debt referred to herein as PLAINTIFF’S AFFIDAVIT. 2. The affiant writing the PLAINTIFF’S AFFIDAVIT does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, creditor name. 3. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of how business records were kept at the original creditor. 4. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of the sale or assignment of the alleged debt from the original creditor to PORTFOLIO RECOVERY ASSOCIATES, LLC. WHEREFORE, the Defendant prays the Court that Plaintiff's Affidavit be stricken from the Complaint filed herein, in which it is incorporated by reference. Respectfully submitted,
Check out this Texas case law regarding challenging 3rd party business records: http://scholar.google.com/scholar_case?case=10612691797526674821&q=dodeka++campos&hl=en&as_sdt=4,44&as_ylo=2012 Here is the relevant excerpt: "Finally, Campos [debtor] contends the [OC] records themselves are untrustworthy. However, we note that the creator of the documents, Chase, must keep careful records of its customer's accounts, otherwise its "business would greatly suffer or even fail." Id. at 244 (quoting Harris v. State, 846 S.W.2d 960, 964 (Tex.App.-Houston [1st Dist.] 1993, writ ref'd)). Furthermore, if Chase failed to keep accurate records, it could face criminal or civil penalties. Id.; see also TEX. FIN.CODE ANN. § 392.304(a)(8) (West 2006) (prohibiting consumer debt misrepresentation); TEX. FIN.CODE § 392.402 (providing criminal penalties for violations of Chapter 392 of the Texas Finance Code). We believe these circumstances lend support to Dodeka's [JDB] claim that the Chase documents are trustworthy." Am I reading this wrong, or is this court basically saying that a JDB doesn't need to establish the reliabiltiy of the original records; they are simply assumed to be reliable (and somehow magically not hearsay) because the OC wants to make money and can get in trouble if they lie? Here was the argument the debtor made: "Campos contends Chaffin did not have sufficient personal knowledge to attest to Chase's business records because Dodeka is a third party who purchased the account and was not the original author of the documents. Further, Campos argues that Chaffin is not qualified to testify about Chase's documents because she did not indicate that she or anyone from Dodeka knew of the events or conditions recorded in Chase's records or had knowledge of the manner in which Chase prepared the documents" Apparently, according to this court it doesn't matter that there was no personal knowlegde of the records when they were created; Chase's records are assumed to be trustworthy becasue they could "face penalties" otherwise. (This is especially ironic that this is Chase who is assumed to be trustworthy; see the affidavit to the government given by former Chase employee Linda Almonte.) What's especially galling about this is that they overturned the trial courts ruling. Since it was an apeal, they said "We will uphold the trial court's ruling on the exclusion of evidence if there is any legitimate basis for the ruling". So basically they are saying that the fact that there is no one that can attest to the veracity of the oc's documents is not a legitamate basis to exclude evidence. This new interpreation of the business records hearsay exception seems insane to me. The JDB afiidavit I received in my lawsuit includes almost the exact language from this case as to why the OC's records are reliable ("reliable because OC is required to keep good records by law and/or suffer busines loss"). I hope I am missing something, because this ruling seems to make it harder to exclude OC docs in Texas.
In my searching I have come across information that seems to contradict what I have heard here about the business records exception. http://federalevidence.com/blog/2010/january/admitting-third-party-business-records-maintained-another-company (third party) “testimony is not necessary where an organization incorporated the records of another entity into its own, relied upon those records in its day-to-day operations, and where there are other strong indicia of reliability” '...we have established that the custodian or other qualified witness need not have personal knowledge regarding the creation of the document offered, or personally participate in its creation, or even know who actually recorded the information.' http://www.txcba.org/uploads/Doc_-_Third-Party_Business_Records.v2.pdf <-- more particularly debt collection related. 'Simien involved an affidavit offered by the representative of a debt purchaser to prove-up that party’s claim. The court held that the admission of the affidavit over a hearsay objection was not an abuse of discretion. In so doing, it determined that the affidavit fell within an allowed exception to the hearsay rule under Tex.R.Evid. Rule 803(6) because it met certain criteria. These criteria constitute a three-pronged test which has become the Simien standard. Specifically, for third-party records to be admissible as a proponent’s own business records, the affiant must show that: 1) the documents are incorporated and kept in the course of the testifying witness's business; 2) the business typically relies upon the accuracy of the contents of the document; and 3) circumstances otherwise indicate the trustworthiness of the document.' (granted, this is a collection industry document) Anyway, this seems to indicate that a jdb can indeed 'take a record from another business' file, drop it into their file, and then call it their business record' Discuss.