Credit Reports as Evidence in FDCPA/FCRA Counter Claim?

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How would one go about getting Credit Reports entered into evidence in a counterclaim against a JDB?

Does the hearsay rule apply to Credit Reports?

Does one need to subpoena a CRA employee to testify as to authenticity?

Can the CR be submitted Redacted except for the pertinent parts?


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this is all I've found so far...

Tuyen Phan v. Vericrest Financial, Inc., et al.,. 2010 U.S. Dist. LEXIS 30057 (M.D. Fla. Mar. 29, 2010)

Facts: Plaintiffs brought suit against Vericrest Financial, Inc. (“Vericrest”), among others, alleging violations of the FCRA, the Truth in Lending Act (“TILA”), and other common law claims. Plaintiff’s claims stem from a mortgage loan closing which Plaintiffs wanted to cancel after the fact based on their contentions that information promised about the terms of the loan was different than what was signed for at the time of closing. Plaintiff also contended that Vericrest violated the FCRA in conjunction with the loan by furnishing inaccurate or incomplete credit information about Plaintiffs to each of the consumer reporting agencies (“CRAs”). Defendant Vericrest filed its motion to dismiss pursuant to Fed. R. Civ. P. 12b(6)for failure to state a claim, claiming that Plaintiff’s Vericrest account reported no adverse information to the CRAs. The Court disagreed and denied Defendant’s Motion.

* Furnisher Duties. A private right of action is available against a furnisher under §1681s-2(B), regarding a furnisher’s duty to conduct an investigation upon receipt of notice of dispute from a CRA.

* Motion to Dismiss. In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.

* Motion to Dismiss. In response to Defendant Vericrest’s motion to dismiss on the grounds that the Vericrest account reported no adverse information to the CRAs, Plaintiffs attached a more current Trans Union credit report (than what was previously attached to their Complaint) showing that adverse credit information was being reported by Defendant Vericrest. Given that the Court allowed extrinsic evidence in response to Vericrest’s motion to dismiss, the Court ruled that Plaintiff stated a claim under the FCRA.

Quinn v. State

662 So.2d 947

Fla.App. 5 Dist.,1995.

July 14, 1995

The defense objected to the introduction into evidence of this credit report on the ground that it contained hearsay within hearsay and was irrelevant. A party must make a proper and timely objection at trial in order to preserve the point for appeal, as we have long held.FN7 In this case, a proper objection would have been that the state failed to provide a proper predicate for admission of the credit report as a business record pursuant to section 90.803(6) of the Florida Evidence Code. Hearsay can be admissible under numerous exceptions, one of which is the business records exception.

FN7. Anderson v. State, 546 So.2d 65 (Fla. 5th DCA 1989); Woodson v. State, 483 So.2d 858 (Fla. 5th DCA 1986); Gilling v. State, 443 So.2d 1024 (Fla. 5th DCA 1983); Thomas v. State, 424 So.2d 193 (Fla. 5th DCA 1983).

It is well established that although the person who made the report need not have personal knowledge of the matter recorded, the information contained in the report “must be supplied by persons with knowledge who are acting within the course of the regularly conducted business activity. If the initial supplier of information is not acting within the course of the business, the information in the record cannot qualify for admission. Statements from persons who are not acting within the regular course of *954 the business may be admissible if they fall within another exception.” Charles Ehrhardt, Florida Evidence Vol I (1994) at 625-6.

In summary, had the identity of the person making the statement been shown, the credit report could have been admitted as a business record. For example, if the credit analyst had been the source of the opinion, based on his examination of the business, that would have made it an admissible business record. Or, if the source had been Quinn, that would have made it partly admissible as an admission against interest. However, without identifying the source of the statement, as a person with knowledge, the credit report probably should not have been admitted.FN9

FN9. See Conley v. State, 620 So.2d 180 (Fla.1993).

The defense's objection that this was hearsay on hearsay does not specifically address this predicate problem. We are thus reluctant to fault the trial judge for having admitted it. Further, even if the objection had been properly made, the admission of the credit report appears to us to have played a very minor role in this trial. There was overwhelming evidence and testimony from numerous Markings' employees, as well as the Quinns, that Edward Quinn was running the company on a day-to-day basis, during the relevant time period. In fact, Quinn made no effort to prove otherwise. Admission of the credit report, even if erroneous, was harmless in the context of this trial. FN10

FN10. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Steward v. State, 619 So.2d 394 (Fla. 1st DCA 1993); Dixon v. State, 589 So.2d 1011 (Fla. 4th DCA 1991), rev. denied, 599 So.2d 655 (Fla.1992); Erickson v. State, 565 So.2d 328 (Fla. 4th DCA 1990), rev. denied, 576 So.2d 286 (Fla.1991).

Quinn also argues that the trial court erred in allowing Sue Bell to testify that during the relevant time period Quinn directed her to send a letter to Broward County which falsely represented that he had no involvement in the management of Markings, so that Markings could qualify under that County's disadvantaged business enterprise program. Initially, we question whether this point was preserved for appeal. Counsel for the defense objected to the sufficiency of the notice required by section 90.404(2)(B) 1 only in passing, and said merely that the evidence was improper.

U.S. v. Metallo

908 F.2d 795

C.A.11 (Fla.),1990.

August 09, 1990

Credit report on defendant's business prepared by credit-reporting service was admissible under business-records exception to the hearsay rule, where records custodian for credit service explained entries in report and testified about service's standard procedure of compiling such reports, notwithstanding that custodian had not personally prepared the report. 18 U.S.C.A. §§ 1029(a)(2), (B)(2), 1341.

Metallo next argues that the district court erred in admitting the Dun & Bradstreet report as an exception to the hearsay rule, see Fed.R.Evid. 802. The business-records exception, however, provides that a record, “if kept in the course of a regularly conducted business activity,” and if “it was the practice of that business activity to make the ··· record,” is admissible unless circumstances “indicate lack of trustworthiness.” Fed.R.Evid. 803(6). For a record to be admitted under Rule 803(6), “ ‘the person who actually prepared the documents need not have testified so long as other circumstantial evidence and testimony suggest their trustworthiness.’ ” United States v. Parker, 749 F.2d 628, 633 (11th Cir.1984) (quoting Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1259 (11th Cir.1983)). The district court permitted defense counsel to voir dire the witness, Dun & Bradstreet records custodian Frederick Sutter, before ruling on the hearsay objection. Sutter, who had not personally prepared the report, explained entries on the report and testified about Dun & Bradstreet's standard procedure for compiling such reports. After argument by both counsel, the district court stated that the key word used by the Government in response to the hearsay objection was “trustworthiness” and that the court would exercise its broad discretion to admit the report under the business-records exception to the hearsay rule.

Sutter's testimony supported the district court's finding that the document was trustworthy. The court's decision to admit the report was not an abuse of the court's considerable discretion in that area. See United States v. Jones, 554 F.2d 251, 252 (5th Cir.) FN5 (under business-records exception, trial courts have “wide discretion in determining whether the document offered has the inherent probability of trustworthiness”), cert. denied, 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142 (1977).

FN5. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

So from reading these, it doesn't look like I'll be able to get credit reports entered as evidence... so how do I prove what the JDB place on my credit reports?????


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