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Some JDB busines records not admissable


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Even if the JDB has a witness to authenticate business records, it may not be admissible if that document was created "as a predicate for suing the consumer" would be admissible.

This is from Ed Combs for IL. Anyone have a similar California reference?

“Business records” must be prepared in the regular course of business, where

there is little or no motive to falsify. Documents prepared after the event for

litigation purposes are not admissible as business records. People v. Smith, 141

Ill. 2d 40, 72, 565 N.E.2d 900, 914 (1990) (prison incident reports are not

admissible under the business records exception to the hearsay rule when offered

to prove the truth of the disciplinary infractions or confrontations between prison

employees or law enforcement personnel or prison inmates); Kelly v. NCI Heinz

Construc. Co., 282 Ill.App.3d 36, 668 N.E.2d 596 (1996); People ex rel. Schacht

v. Main Ins. Co., 114 Ill. App. 3d 334, 344, 448 N.E.2d 950, 957 (1st Dist. 1983)

(“since the probability of trustworthiness is the rationale for the business records

rule, records prepared for litigation are not normally admissible even if it is a part

of the regular course of business to make such records”). No document prepared

by a debt buyer regarding a charged-off account as a predicate for suing the

consumer should be a business record.

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This is from Ed Combs for IL. Anyone have a similar California reference?

No so much for California specifically, but most state's Rules of Evidence require that the records must have been created on or near the date of the subject transaction.

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California Evidence code section 1271:

1271. Evidence of a writing made as a record of an act, condition,

or event is not made inadmissible by the hearsay rule when offered to

prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(B) The writing was made at or near the time of the act,

condition, or event;

© The custodian or other qualified witness testifies to its

identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation

were such as to indicate its trustworthiness.

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  • 8 months later...
California Evidence code section 1271:

1271. Evidence of a writing made as a record of an act, condition,

or event is not made inadmissible by the hearsay rule when offered to

prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(B) The writing was made at or near the time of the act,

condition, or event;

© The custodian or other qualified witness testifies to its

identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation

were such as to indicate its trustworthiness.

9-months later, new case, same issue.

Scenario:

1. JDB has a Bill of Sale (signed by both OC and JDB) dated about 1-month after chargeoff.

2. JDB has an Affidavit of Sale (signed by the OC) dated 15 months after the Bill of Sale. This has debtor name, account number, amount of debt.

The Bill of Sale has no account information on it whatsoever (as is the usual situation with JDB assignments) so I will challenge that first if they find a way to introduce it as evidence.

My question is what do you think of attacking business exception to hearsay rule for the Affidavit of Sale since it was signed 15 months after the Bill of sale? Over a year later is not "at or near the time" of the sale/assignment.

My attack plan:

1. Attack all documents as hearsay/lack of foundation, since OC will not be there.

2. JDB will have JDB witness who will try to claim business record - attack that JDB employee not OC employee and record in question is record of the OC, not record of the JDB.

3. Further, attack that business record exception for Affidavit is not allowed because it was signed 15 months after after the initial sale.

4. Worse case, if somehow judge lets evidence in, then I attack the contents of the documents but that becomes an uphill battle since it becomes preponderance of the evidence at that point. There are some chain of custody questions I can attack to try and weaken the credibility of the witness, i.e. what knowledge does JDB witness have about how records are created, stored, what was mailed, what was electronic, what address mailed to, etc.

Thoughts?

Edited by ficofightr
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This is why anyone attacking an affidavit HAS to suppeona the affiant and not simply object it is heresay.

http://creditfactors.com/2009/10/class-action-federal-court-holds-debt-buyer-midland-affidavit-patently-false/

This is always in conjunction with your own affidavit submittted. There are a slew of question to throw at the custodian of the JDB's records.

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This is why anyone attacking an affidavit HAS to suppeona the affiant and not simply object it is heresay.

http://creditfactors.com/2009/10/class-action-federal-court-holds-debt-buyer-midland-affidavit-patently-false/

This is always in conjunction with your own affidavit submittted. There are a slew of question to throw at the custodian of the JDB's records.

It may be different in California state court. The JDB has not yet submitted any affidavits and will try to get them into evidence at trial. In California you don't have to submit the affidavits along with the complaint, and my next court date is a trial and not an MSJ or some other motion where they submitted an affidavit in a filing.

I have the affidavit from discovery which has signature from the OC (and is also dated 15 months after the assignment so I will argue against business exception to hearsay rule as well as hearsay objection).

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GEORGIA CODE

Copyright 2009 by The State of Georgia

All rights reserved.

*** Current through the 2009 Regular Session ***

TITLE 51. TORTS

CHAPTER 6. FRAUD AND DECEIT

O.C.G.A. § 51-6-2 (2009)

§ 51-6-2. When misrepresentation of material fact actionable as deceit; effect of mere concealment; knowledge of falsehood essential to deceit; when knowledge implied

(a) Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.

(B) In all cases of deceit, knowledge of the falsehood constitutes an essential element of the tort. A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false.

HISTORY: Orig. Code 1863, § 2901; Code 1868, § 2907; Code 1873, § 2958; Code 1882, § 2958; Civil Code 1895, § 3814; Civil Code 1910, § 4410; Code 1933, § 105-302.

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  • 5 weeks later...

How do you determine what docs / evidence attached are applicable - which are from JDB and which are from OC?

So for example a JDB case with attached copies of records, contracts copied from PC screens, Xerox account statements, Xerox CC agreements, bill of sales / assignment - without attached affidavit to authenticate.

Do you assume they are all created by JDB unless otherwise proven or authenticated from any alleged affidavit?

Is this done in discovery process only?

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