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Hearsay Exception


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I'm attempting to get more info in my never ending attempt to having my Equifax credit report admitted as evidence at my trial on 5/3. I anticipate a hearsay objection and would like to be prepared. After doing some research, it seems that the best way to overcome this objection is using the business records exception which must support the following:

1) record was made by a person with knowledge or the information was transmitted by a person with knowledge

2) record was made at or near time of act appearing in it;

3) record was made as part of regular practice of business;

4)record was kept in course of a regularly conducted business

To lay the foundation for this, I need to obtain an affidavit or certification from Equifax establishing that the documents were prepared in the ordinary course of business. My only problem is: How do I get this affidavit?

Do I serve Equifax's custodian of records with a subpoena to produce documents

AND specify that the document I wish to obtain is an affidavit or certification.

or do I use some other wording?

NOTE: I have in my possession that credit report that I need to have authenticated. Do I include that with my subpoena?

All help is greatly appreciated.

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The 2nd District Appeals court has a case on hearsay exception that applies to the FDCPA but I can't find the caption or the case, but it's very recent, like last 2 years.

When you say business exception I think maybe your looking at this:

Rule 803 Hearsay exceptions: availability of declarant immaterial

The following are not excluded by the hearsay rules, even though the declarant is available as a witness:

[first 5 aren't applicable to you]

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular

practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or other data compilation was regularly made and preserved, unless the sources of information or other

circumstances indicate lack of trustworthiness.

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I would get with the other lawyer and ask them to stipulate that the credit report is an authentic business record. Odds are they would. You don't have time to get someone from EQ to prove the document for you.

Other than that, here are options:

Is EQ a party to the lawsuit? If so - since the document is prepared by them - it is "admission by a party opponent" and by definition not hearsay.

If you are talking about actionable misreporting by a OC or CA - the report is a document of "independent legal significance," like a contract in a breach of contract case.

Lastly, hearsay only applies when out of court statements are "offered for the truth of the matter asserted." I.E. to prove the TRUTH of what it says. Here, are not offering them to show that the listed debts are true - in fact you dispute the information. You are offering it for some other reason - to show the CA reported when they should not have, etc.

Nothing is a slam dunk. All of these are just arguments. If you were really at trial you would need an affidavit from EQ laying it down as a business record or a stipulation from the other lawyer that it is a business record.

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