CRE 803 Teac Corp. v. Bauer, 678 P.2d3 (Colo. App.1984)

[Fairy Enchantress]

Here is the response to motion I filed with court. I told the court the Plaintiff's records are hearsay because they do not come from the original creditor.

The Plaintiff files a response:

Defendants motion is based on her understanding of the hearsay rule.Plaintiff acknowleges that the business records are hearsay,but asserts that they are admissible under CRE 803 Teac Corp. v. Bauer, 678 P.2d3 (Colo. App.1984).

What should I do now? What do you think of the Plaintiff's response?

[swirlgirl]

It's a good argument.

Teac Corp. v. Bauer, 678 P.2d 3 (Colo. App. 1984)(records prepared by another source that are adopted and integrated in regular course of established business procedures into records sought to be introduced are admissible under CRE 803(6), even if identity of person whose first-hand knowledge was the basis of a particular entry is not established).

Remind me again. How much is this debt?

[Fairy Enchantress]

Any ways to get around this?

(Swirlgirl you have a email )

I did find

http://www.michie.com/colorado/lpext.dll?f=templates&fn=main-h.htm

Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial

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

Records prepared by another source, if adopted and integrated in the regular course of established business procedures into the records sought to be introduced are admissible even if the identity of the person whose first hand knowledge was the basis of a particular entry is not established. Teac Corp. of America v. Bauer, 678 P.2d 3 (Colo. App. 1984).

Still searching to get around this if anyone can help. Thank you.

[jq26]

What were the records they are submitting? Who prepared them? And when? These are factual matters that will determine if the evidence is admissible under the business hearsay exception. Without knowing the facts, I'd argue that the self-serving nature of creating documents for collection & suit renders the document untrustworthy.

Show they lack one more of the required elements:

1. The document must have been made ''at or near'' the time of the matters recorded in it. This prompt entry requirement is somewhat flexible and normally can be determined by reference to the documents themselves.

2. The document must have been prepared by, or from information transmitted by, a person ''with knowledge'' of the matters recorded. As long as the original source of the information had knowledge, the information may pass through a chain of witnesses on its way to the person preparing the report, as long as each person in the chain is transmitting the information in the ordinary course of business.

3. The person or persons who prepared the document must have done so as part of a ''regularly conducted business activity.'' The same chain of information described above is permissible in satisfying this requirement. Even if the person preparing the report did not do so as a regularly conducted business activity, the report may still be admissible if the report was adopted and integrated by the business in its regular course of business. See Teac Corp. of America v. Bauer, 678 P.2d 3, 4 (Colo. App. 1984) .

4. It must have been the ''regular practice'' of that business activity to make such documents.

5. The document must have been retained and kept ''in the course of'' that, or some other, ''regularly conducted business activity.'' Palmer v. Hoffman, 318 U.S. 109, 113 (1943) has been interpreted to mean that records prepared for litigation, at least those supportive of the position of the proponent, do not qualify under the business records exception.

6. Even when these five foundational elements are established, the court must be satisfied that the sources of the information or the method or circumstances of preparation do not indicate a lack of trustworthiness.

Edited to add: I just actually read the Teac case. I think you can beat this. Teac stands for the proposition that computer generated records from another source (ie Finance America) can be used by plaintiff (Teac) as long as they are trustworthy and meet the required elements under the business record hearsay exception rule. They would of course be hearsay but may be admissible so long as the elements above are satisfied. Teac is about the plaintiff being able to use the original creditor's computerized statements. In Teac, Teac is the plaintiff and Finance America is the original creditor:

"...The only evidence of the amount of defendant's indebtedness was the statement of the accountant, which was based in relevant part upon computer generated records supplied by Finance America..."

"...the only evidence of the amount of defendant's indebtedness was the statement of the accountant, which was based in relevant part upon computer generated records supplied by Finance America. However, there was evidence that Teac and Finance America had engaged in approximately 500 similar financing arrangements, that Teac was familiar with and customarily relied upon Finance America's records, that Teac paid Finance America over $88,000 in reliance upon the accuracy of Finance America's data, and that Bauer and the other guarantors did not dispute the amount set forth in the statement of the accountant. There was thus sufficient evidence to support the trial court's admission of that document."

In your case, from the very limited facts you posted, this is an entirely different situation. The plaintiff is trying to create their own records without proof of your ownership. It is the equivalent of you typing up a document claiming the CA owes you $10,000 and then filing suit based on your document. It is totally different than the holding in Teac.

[flacorps]

Parse that case carefully. I bet it involved acquisition of an entire firm by another firm, not the purchase of a portfolio of debt that consisted of database entries and no paperwork by a JDB that was entitled to go back and buy the supporting documents as circumstances necessitated (and the latter circumstance I suspect would rend asunder the logic for allowing the admissibility of the records in the former circumstance).

[jq26]

I don't think there was any acquisition involved. It appears to be a case of plaintiff manufacturer, who bought the debt of the retailer from the original creditor, had admitted into evidence computer printouts created by the original creditor as evidence of retailer’s indebtedness. They were deemed admissible because of a certain set of facts that established trustworthiness.

If you have a different take on the case, by all means please post. I'm new at this. Haha.

[admin]

Why not have Finance America certify that the records are correct?

What are the conditions which must be met?

By the way, Fair Enchantress, I'm proud of you! Good work.

[LUEser]

Yep, JQ is right on.

Teac is a totally different animal.

Teac used records from another company that met the five criteria.

This Firm is using self manufactured records, right?

Unless they have an affidavit from the OC, this isn't protected by Teac.

And, if they do have an affidavit from the OC,then they still have to meet the five criteria.

You can beat this.

[Fairy Enchantress]

jq26;What were the records they are submitting?1. Assigment of Claim forms,Account Data from Assignor,Cardholder Agreement,Interest and Principle Calculation.However they have no account statements,no credit card receipts,no signature, no signed application.

Who prepared them? I guess they are saying it came from the Assignor.But that still is not the Original Creditor. And when? I don't know.I will find out though. These are EXCELLENT questions you brought up!

I love it, and thank you very very much for your help!

Why not have Finance America certify that the records are correct?Ask the court to have the OC certify their records are accurate? By a motion?

What are the conditions which must be met?Not sure if you are trying to see what conditions need to be met for the OC certifying the records or what conditions need to be met under the case Teac Corp. v. Bauer.If it is the conditions for Teac Corp. v. Bauer there is six."This is from jq26" 1.) The document must have been made ''at or near'' the time of the matters recorded in it. This prompt entry requirement is somewhat flexible and normally can be determined by reference to the documents themselves.2.) The document must have been prepared by, or from information transmitted by, a person ''with knowledge'' of the matters recorded. As long as the original source of the information had knowledge, the information may pass through a chain of witnesses on its way to the person preparing the report, as long as each person in the chain is transmitting the information in the ordinary course of business.3.)The person or persons who prepared the document must have done so as part of a ''regularly conducted business activity.'' The same chain of information described above is permissible in satisfying this requirement. Even if the person preparing the report did not do so as a regularly conducted business activity, the report may still be admissible if the report was adopted and integrated by the business in its regular course of business. See Teac Corp. of America v. Bauer, 678 P.2d 3, 4 (Colo. App. 1984) .4.) It must have been the ''regular practice'' of that business activity to make such documents.5.) The document must have been retained and kept ''in the course of'' that, or some other, ''regularly conducted business activity.'' Palmer v. Hoffman, 318 U.S. 109, 113 (1943) has been interpreted to mean that records prepared for litigation, at least those supportive of the position of the proponent, do not qualify under the business records exception.6.) Even when these five foundational elements are established, the court must be satisfied that the sources of the information or the method or circumstances of preparation do not indicate a lack of trustworthiness.

Thank you Admin. I really look up to all of you.

LUEser Great to see you and thank you for the push of confidence!This Firm is using self manufactured records, right? Yes.

[admin]

Why not have Finance America certify that the records are correct?Ask the court to have the OC certify their records are accurate? By a motion?

Object to the documents which are self-produced and say that you need some kind of authentication before you will not object. Just because they object to your hearsay doesn't mean the judge will agree with them. Point out the inconsistencies of that case law towards your case (Lueser and Jq did a good job laying them out) as the basis for your objection.

What are the conditions which must be met?

Not sure if you are trying to see what conditions need to be met for the OC certifying the records or what conditions need to be met under the case Teac Corp. v. Bauer.If it is the conditions for Teac Corp. v. Bauer there is six."This is from jq26" 1.) The document must have been made ''at or near'' the time of the matters recorded in it. This prompt entry requirement is somewhat flexible and normally can be determined by reference to the documents themselves.2.) The document must have been prepared by, or from information transmitted by, a person ''with knowledge'' of the matters recorded. As long as the original source of the information had knowledge, the information may pass through a chain of witnesses on its way to the person preparing the report, as long as each person in the chain is transmitting the information in the ordinary course of business.3.)The person or persons who prepared the document must have done so as part of a ''regularly conducted business activity.'' The same chain of information described above is permissible in satisfying this requirement. Even if the person preparing the report did not do so as a regularly conducted business activity, the report may still be admissible if the report was adopted and integrated by the business in its regular course of business. See Teac Corp. of America v. Bauer, 678 P.2d 3, 4 (Colo. App. 1984) .4.) It must have been the ''regular practice'' of that business activity to make such documents.5.) The document must have been retained and kept ''in the course of'' that, or some other, ''regularly conducted business activity.'' Palmer v. Hoffman, 318 U.S. 109, 113 (1943) has been interpreted to mean that records prepared for litigation, at least those supportive of the position of the proponent, do not qualify under the business records exception.6.) Even when these five foundational elements are established, the court must be satisfied that the sources of the information or the method or circumstances of preparation do not indicate a lack of trustworthiness.

Thank you Admin. I really look up to all of you.

Based on what you've posted, their documents do not meet the standards of Teac.

[Fairy Enchantress]

I agree Admin.

I am also going to read more of Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial in great detail. To make sure they don't try to pull another reason out why they can admit hearsay.

Thank you... to all of your brilliant minds at work in helping me. It means a lot to me.

[Fairy Enchantress]

Where is a link to the 5 criteria that must be met. I had it yesterday and now when I type it in on google it is not showing up.

[LUEser]

I found it referenced in :

People v. Huehn.

Here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=co&vol=2002app\177&invol=1

The hearsay objection to the admissibility of computer-generated records may be overcome by, among other methods, showing that such records are admissible under CRE 803(6), the business records exception to the hearsay rule. Material and relevant computer records are admissible under this exception if: (1) the computer entries are made in the regular course of business; (2) those participating in the record making were acting in the routine course of business; (3) the input procedures were accurate; (4) the entries were made within a reasonable time after the transaction involved; and (5) the information was transmitted by a reliable person with knowledge of the event reported. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984); Benham v. Pryke, supra

And this was this particular judge's opinion on Teac:

The fact that the records created by MAC were introduced through the Key Bank officer, whose department received and kept the records, did not preclude their admission under CRE 803(6). See Hauser v. Rose Health Care Systems, 857 P.2d 524 (Colo. App. 1993)(documents created by one business but regularly received, maintained, and relied upon by another may be admitted as business records of the latter); Teac Corp. v. Bauer, 678 P.2d 3 (Colo. App. 1984)(records prepared by another source that are adopted and integrated in regular course of established business procedures into records sought to be introduced are admissible under CRE 803(6), even if identity of person whose first-hand knowledge was the basis of a particular entry is not established).

[Fairy Enchantress]

Thank you.