Business Records Exemption: what if rule allows "transmission by person w/knowledge"?

[amomaine]

I am attempting to draft a Motion to Strike Affidavit (from a JDB employee regarding an OC account they are assigned/own) on the basis of hearsay; however, I am concerned that I may get tripped up by the wording of the Business Records Exemption rule in Maine Rules of Evidence:

(6) Records of regularly conducted business. 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, and if it was the regular practice of that business to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 903(12) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness(...)

Specifically, I'm concerned about the "transmitted by a person with knowledge" aspect. In the affidavit, the JDB employee says she has personal knowledge JDB's record keeping and that JDB keeps records dating back to and maintains the records of its predecessors. My fear is that I file this motion, JDB will in fact have all these records they claim (I am also about to file discovery) and that my motion will be overruled because of the line in the rule about "information transmitted by a person with knowledge" (records originating from OC).

Is this concern valid?

I'd really like to do this Motion to Strike (though I am also having great difficulty writing the memorandum which I believe needs to be submitted along with it) but not if it's going to be a waste of time.

Thanks much.

[nascar]

Without access to the text of the affidavit, it's really hard to determine what's wrong with it in terms of whether you have grounds to exclude it.

[Downto0]

the JDB employee says she has personal knowledge JDB's record keeping and that JDB keeps records dating back to and maintains the records of its predecessors.

But this is the JDB's record keeping. All that the JDB employee can attest to is what the JDB has done with the records since it received them. This does not verify the accounting methods from the OC which is where the debt first originated.

A real affidavit from a real affiant from the OC will give the details of the debt. That the defendant did receive a cc from the OC, that purchases were made with that cc, that the defendant did not pay, etc.

All that the JDB employee is doing in the current affidavit is saying that the JDB has the current delinquent debt and is maintining the records according to the record keeping methonds employed by the JDB.

Now, the JDB proposes to take this bit of information into court to support its claim that you owe the debt. How can the JDB employee's stating that she/he knows about the record keeping methods of the JDB establish that the debt is real and legit?

The affidavit is obvious hearsay and you should file a motion to strike.

My fear is that I file this motion, JDB will in fact have all these records

Fat chance. It probably doesn't have much more than the affidavit and a blanket bill of sale. It may or may not have a last statement.

[admin]

It's intimate knowledge of the creation of the debt, not the purchase of the debt.

[Downto0]

Exactly!

There are two things which need to be established for a affidavit to be valid. Form and substance.

In the form your are looking to see who exactly is attesting, who do they work for, what is their position, etc. In the substance you are looking for exactly what the affiant is attesting to, if the cc was issued, purchases were made, the account is delinquent, etc.

From what you have posted, the affiant is attesting that the JDB keeps good records. She/he can attest to this...doesn't do anything to establish the debt.

[cjtx]

(6) Records of regularly conducted business. 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, and if it was the regular practice of that business to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 903(12) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness(...)

The part you are concerned about has to do with the creation of the business records. In all likelihood a minimum wage clerk enters the information into the system. This would fit the description of "by or from information transmitted by a person with knowledge". Who exactly made the record is deemed irrelevant, as long as its business practice to keep the records in a certain way.

The part you need to look into is "custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 903(12) or a statute permitting certification. This tells you who may provide testimony related to the business records independently of who created them physically.

[ficofightr]

Anyone have a reference for what "other qualified witness" means? The "custodian or other qualified witness" looks like standard language in federal and the state evidence rules I've looked at (including California where I am from).

[LUEser]

I've found this case from a North Dakota court:

http://www.ndcourts.com/Court/Briefs/20040188.ryb.htm

It cites Ohio and West Virginia opinions on the subject.

In brief, the "other qualified witness" was an officer of the law.

The court construed the Police Department as a "business" under the rules of evidence.

This was the important part of the ruling:

As one court has noted, the plain language of the business records exception simply requires that "the matters set forth in a record . . . either be based upon the personal knowledge of the recorder, or the knowledge of the supplier of the recorded information, who together with those involved in transmitting it to the final recorder, must be acting routinely and under a duty of

accuracy." Lacy v. CSX Tranportation, Inc., 520 S.E.2d 418, 434 (W.Va. 1999). The court also noted that "ecause of the complexities inherent in modern record-keeping processes, . . . the knowledge element of Rule 803(6) is liberally construed." Id. at 435.

Along the same lines, another court observed as follows:

nder the business record exception to the hearsay rule, the witness providing the foundation for the document need not have firsthand knowledge of the transaction. Rather, the witness must demonstrate that he is sufficiently familiar with the operation of the business and with the circumstances of the record's preparation, maintenance and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with Evid. R. 803(6).

Applying that to a JDB, one would simply have to show that the affiant was neither a custodian of the records for the OC, or that the affiant is not "sufficiently familiar" with the procedures for record keeping of the OC.

Seeing as how the affiant has most likely never worked for the OC, it would be reasonable to conclude that he or she is not sufficiently familiar with the business practices or record keeping procedures of that company; he or she is only sufficiently familiar with the record keeping of JDB.

[ficofightr]

I know that the witness doesn't have to be the custodian of records, i.e. they could be a clerk or other individual who was involved with oversight and control process (because it's unlikely that a company would have a single individual who oversees everything at all times and forever).

My question is have there been cases where a JDB employee is used as a witness to lay foundation for introduction of OC statement under business record exemption. I've seen some references to this for small claims and arbitration where evidentiary rules are "relaxed", but what about state district court? (In California it is "Superior Court").

[henry1018]

OMG!!!! Start by googling 'Alloway vs. RT Capital'. Then you're on your way to understanding A JUDGE'S interpretation of the hearsay rule. Follow the citations in this case. Convincing each other of what the definition of a proper 'custodian of records' must be is a waste of time. Keep in mind that the affidavit may very well be admissable but the CONTENTS of the affidavit may be hearsay.

[ficofightr]

OMG!!!! Start by googling 'Alloway vs. RT Capital'. Then you're on your way to understanding A JUDGE'S interpretation of the hearsay rule. Follow the citations in this case. Convincing each other of what the definition of a proper 'custodian of records' must be is a waste of time. Keep in mind that the affidavit may very well be admissable but the CONTENTS of the affidavit may be hearsay.

The debtor defendant in that case made a lot of other mistakes including admitting to the account and purchases made and not attacking the chain of title. His affidavit in his appeal was pretty weak too. It was briefly discussed here: http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=293868

What was most interesting here was this bit - where there is case law in Ohio that allows a JDB to lay foundation for OC statements:

[¶16] Mr. Alloway seems to argue that, because the original lender generated the credit card statements, Ms. Herndon, as an employee of RT Capital, could not provide the foundation necessary for admission of the statements. In Great Seneca Financial v. Felty, 869 N.E.2d 30, 34 (Ohio Ct. App. 2006), an Ohio court of appeals held, under circumstances similar to those presented here, an employee of the assignee of a credit card account could provide foundation for the statements. The court followed federal court decisions which held that “exhibits can be admitted as business records of an entity, even when that entity was not the maker of those records, provided the other requirements of Rule 803(6) are met and the circumstances indicate that the records are trustworthy.”

Edited December 2, 2009 by ficofightr

[henry1018]

I don't care about the rest of that case- Not being an attorney, I am most intrigued by the lesson to be learned regarding evidence's admissibility with respect to rule 902. That court also references Felty v Great Seneca where Felty errantly objected to the admissability of an affidavit but failed to object to the content of that afidavit. Read Felty! The way this thread has progressed, I would almost bet on a procedural slip-up without some more research on rules regarding evidence admissability

[ficofightr]

One of the best things I've done to help me learn case law as well as specific examples of hearsay evidence and evidence lacking foundation be rejected is searching cases by consumer lawyers in my area.

You need to find a couple good ones and go to the courthouse and read their case files. It's too expensive to order the full court transcript, but betewen the 'minute reports' and the various motions and replies you get a pretty good idea on how both sides argued.

The best cases I've found are ones where the JDB did not provide sufficient discovery and the debtor lawyer attacked that.

Also, if you're lucky enough to have a JDB that has an assignment from many intermediate assignors/assignees, it's almost always a guaranteed victory even if you admitted the debt (but of course don't admit unless you have to).

I also found some Subpoenas to OC's interesting when the OC's replied to the court that they only retained records for 18 months "due to retention policies" and therefore couldn't satisfy the supboena. In other words, some OC's only have say the last month's statement and that's it.

I think in the future, with all the cheap storage and software available these days, OC's will have the entire record available especially with all the online statements. So I'm not sure how the debtor/hearsay game will change in the future, but for now, in almost every case that I researched in my local county where the consumer lawyer kicked butt it came down to:

1. No OC available for witness, no account statements or card holder agreement allowed in evidence.

2. No JDB witness showed up (they don't always fly across the country just to try and win a few thousands bucks, that they might never see anyways)

3. Chain of title for assignment attacked

In a couple cases, even with the OC witness showed up, there were still areas of attack, including:

- Bill of Sale incomplete, doesn't show specific accounts or list consideration

- Signer of Bill of Sale often does not have authority to make assignment... it's just some random Vice President of the bank (of which there are many) scratching a signature

- OC witness cannot identify who the signer is, oops! I've seen Bill of Sales with just something like "Jim, Vice President" and some chicken scratch

In one case, OC had 5.5 years of account statements that was admitted, but Bill of Sale was not allowed into evidence and debtor won (no proof of assignment).