ficofightr

Business Records into evidence without witness

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In "Represent Yourself In Court" (6th edition), page 323 states:

Your court may have faster ways to admit business records. To save businesses the time and expense of sending employees to court, many states have adopted a shortcut procedure for admitting business records known as the Uniform Photographic Copies of Business and Public Records as Evidence Act. If your state has adopted this law, a business can comply with your Subpoena Duces Tecum asking for a business record by mailing records to the court along with an affidavit signed under penalty of perjury as to how the records are kept.
The records are then admissible in evidence without your having to offer any further foundation.

Would this be a way for some JDB's to introduce records into evidence without the cost of bringing witnesses to trial?

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You need to read your own state's rules of evidence related to business records, but most likely, they will be admissible unless the affidavit lacks some important element (could be something like the person making it has personal knowledge of the recordkeeping practices, that the records were made at or about the time when events happened, etc).

Any reference to records created by someone else (like the OC or former owner) can still be objected to as hearsay.

They can introduce records like that 'til the cows come home. However, if there is a challenge to any of the facts in their records, via your own affidavit and some proof, the CA's affidavit and business records are not enough and it becomes necessary to bring in a witness to testify about the alleged inaccuracies.

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My initial understanding of the UPA was to allow for copies rather than originals, i.e a copy by itself won't jeopardize admissibility unless there's some specific issue about the copy itself.

But the way it was written in the Nolo book makes it sound like some states adopt rules that may allow foundational testimony to be accepted without a witness. That's a huge difference which is why I posted about it.

Any reference to records created by someone else (like the OC or former owner) can still be objected to as hearsay.

But the danger with this rule is that OC's can sign affidavits about account statements to enter them into evidence. Now you can still attack the contents of the account statements, but you won't be able to object to admissibility even if OC witness is not there (depending on state rules, of course).

Same goes for other documents they rely on... now instead of needing someone to authenticate a contract, bill of sale, assignment, etc. they just file an affidavit about the document.

You are current, if the content of the document contains hearsay you can still object, but you're down to one small hope rather than several easy ways to beat a JDB if this act applies in your state.

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But the way it was written in the Nolo book makes it sound like some states adopt rules that may allow foundational testimony to be accepted without a witness. That's a huge difference which is why I posted about it.

In order to see how these rules apply in real world situations, you might want to read some court opinions dealing with the issue. Reference books are OK to an extent, but they are often written from the perspective of the writer. Then, when the reader interprets what the writer has written, the actual judicial interpretation is often very different.

Without straying into a bunch of details about an Act that has little to do with what we cover on this forum, this thread alone already contains several conclusions contrary to common law interpretation.

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I have had some good luck with Business Records Affidavit.

Read the Midland Case:

On point is the case of Martinez v. Midland Credit Management, 250 S.W.3d 481; 2008 (Tex. App.–. El Paso 2008) which follows the McClure doctrine.

The judgment of the trial court was reversed and remanded.

Midland brought suit against Martinez to recover on a debt allegedly owed by Martinez. Midland alleged that it "and/or its Predecessor" extended credit to Martinez. Midland alleged that Martinez accepted the credit extended by making charges on the credit card account.

Midland attached an affidavit to its petition that contained an exhibit which Midland stated was "[a] brief summary of the account." Midland alleged that "[t]his account represents a summary total of a transaction or series of transactions of which a systematic record has been kept." The affidavit did not contain the printed name of the affiant, but appears to have been signed "E. Mart" (the "Mart Affidavit").

The attached exhibit contained what the Court described appears to be a computer-generated, single-page document that includes Martinez's name, address, an account number, and a balance of $ 2,076.74.

Midland further alleged that Martinez defaulted in making payments on the debt incurred, that it had demanded payment from Martinez, and that the balance, after all offsets, credits, and payments, was $2,076.74. Midland sought judgment in the amount of the debt, plus attorney's fees, pre-judgment interest, post-judgment interest, and costs of court.

The Rules of Civil Procedure require that "upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." See Tex. R. Civ. P. 166a(f).

The Rules of Evidence, however, provide the following hearsay exception:

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, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

"Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex. R. Evid. 803(6).

We have held that:

The predicate for admissibility under the business records exception is established if the party offering the evidence establishes that the records were generated pursuant to a course of regularly conducted business activity and that the records were created by or from information transmitted by a person with knowledge, at or near the time of the event.

Business records that have been created by one entity, but which have become another entity's primary record of the underlying transaction may be admissible pursuant to rule 803(6). Invoices received from outside vendors were admissible upon testimony by custodian of records as to the procedure by which the invoices became the company's business records). In addition, a document can comprise the records of another business if the second business determines the accuracy of the information generated by the first business. Id.;

Although rule 803(6) does not require the predicate witness to be the record's creator or have personal knowledge of the content of the record, the witness must have personal knowledge of the manner in which the records were prepared. In re K.C.P., 142 S.W.3d 574, 578 (Tex. App.--Texarkana 2004, no pet.).

Documents received from another entity are not admissible under rule 803(6), if the witness is not qualified to testify about the entity's record keeping. Custodian of records for travel agency was not qualified to testify as to records received from third-party company, showing credits to customers' credit card account).

In this case, the affiant does not provide any information that would indicate that he (or she) is qualified to testify as to the record- keeping practices of the "predecessor." The affiant does not identify the predecessor, nor does he provide any information concerning the acquisition of the attached record. The affiant does not indicate in any way that he has any knowledge of the predecessor's record-keeping policies or that the records are trustworthy. In fact, the affiant does not even provide his full name.

As such, the Mart Affidavit did not satisfy the requirements of rule 803(6), and the trial court erred by admitting it.

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To respond to ficofighter, it seems as though the defendant didn't have a chance from the beginning because he admitted to owing something on the account. The assignment and lack of privity defenses failed in this case. It also seems like the collection agency had been coached by lawyers that knew precisely the wording the employee affidavit needed to be admissible. These are important points that anyone being sued by a collection agency should study. Thanks very much for posting that link.

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Neither one of the affidavits are worth the paper they're written on, but the debtor's version is a joke. Your example is very helpful in that it reminds us that affidavits need to represent facts and not simply statements of opinion. Both affidavits contain mostly statements of opinion; the JDB simply hides it better.

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The problem with a JDB and a Business Record Affidavit is that they buy this debt in bulk. It does not come with Business Record Affidavits from the Original Creditor.

To get a business record affidavit from the Original Creditor will cost the JDB some cash. Not sure how much. Someone on this board ought to know that.

They try to get by with these pseudo affidavits that will not withstand judicial scrutiny. Their affidavits (and I am paraphrasing) typically indicate they bought some debt from someone who said it was a valid debt.

What they must have is a business record affidavit from the Original Creditor indicating that defendant (you) the Original Debtor entered into an agreement with the Original Creditor whereby you would pay the debt.

I have seen them even attach some sort of general agreement to the affidavit and indicate under oath ... that most likely debtor (you) signed an agreement much like the one attached.

They know this will not work and it their course of conduct is BAD FAITH for which they should be fined. You should respond with a counterclaim for BAD FAITH in your answer and file a Motion for Contempt to have them sanctioned and BEST OF ALL FINED for pulling these shenanigans.xdancex

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I cannot emphasize how strongly I disagree with the previous poster who indicates you cannot challenge a valid Business Record Affidavit from the Original Creditor.

Business Record Affidavits are extremely technical and that is where you always begin. Does the affidavit comply with the state's rules on affidavits.

Is it made on knowledge of facts or on the infamous INFORMATION AND BELIEF. I still see those INFORMATION AND BELIEF affidavits all the time. Those are NOT AFFIDAVITS.

Is it made by a person in authority, familiar with the records, in their capacity as record keeper or HOWEVER YOUR STATE PHRASES IT. You will see a lawyer in one state draft it for evidence in another state all the time and get it wrong.

DO NOT BE LAZY. READ THE BUSINESS RECORD AFFIDAVIT STATUTE TYPICALLY IN THE RULES OF EVIDENCE AND THE AFFIDAVIT STATUTE TYPICALLY IN THE RULES OF PROCEDURE.

These are two different affidavit statutes but the Business Record Affidavit must comply with BOTH.

Be sure it does.

Check the notary with your state ... make sure they are authorized and their seal is up to date ... their bond is paid. Notaries do not pay their bonds all the time and their notarization will be INVALID. Go to the notary and ask to see her book and make sure she recorded it correctly if you want to get really technical. If there is big money involved I would do that.

Check the amounts ... are they correct and are they consistent. There are errors here often.

I have seen one name in the body of the affidavit and another signing the affidavit. That's an out the door violation.

DO NOT BELIEVE FOR ONE MINUTE YOU CANNOT FIND AT LEAST A DOZEN THINGS TO CHALLENG ABOUT A BUSINESS RECORD AFFIDAVIT FROM AN ORIGINAL CREDITOR.

In my experience one in ten cannot withstand judicial scrutiny.

Get the business record thrown out ... you are in trial and they have no evidence. Move for dismissal with prejudice.

8-)

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