Credit Card Statements and Authentication of Documents

[SingleDadJames]

I've been reading and wading through posts on this forum, and other websites for a long time now. I wanted to pose a question for the forum on just ONE of many things I'm having a hard time wrapping my overloaded head around: Alleged copies of credit card statements provided by a JDB and the need for "authentication" of these documents for admisibility as evidence.

Over and over again in this forum I see the argument that alleged copies of credit card statements mean nothing unless the plaintiff is the OC and provided them. If they are provided by a JDB or other third party then the consensus on this board seems to be they are hearsay and that the statements need to be authenticated by the OC.

In my research however I keep seeing cases where a simple affidavit and alleged copies of original credit card statements from the JDB were plenty of info to slam dunk the case in favor of the Plaintiff. The statements generally seem to be entered into evidence without much of a fight and I just haven't come across many cases that indicate these statements had to be authenticated, were authenticated, or even where admissibility on the basis of authenticity was really challenged. It just looks like for the most part when statements are entered they are simply accepted by the court and the parties involved....but I'm hoping other members here can help point out some cases where I can look at the authenticity being challenged and even see if it's ever been successful.

The way I see it, alleged credit card statements provided by a JDB are nothing more than hearsay w/o some sort of authentication or foundation to show that they were provided by the OC. Since I don't want to go into trial looking like any MORE of a fool than I already do for proceeding pro se, I'm trying to play devil's advocate here.

Of course if the admission of statements isn't challenged by the Defendant the court is going to allow them as evidence. So the first step would logically be to object, motion to strike, or other wise challenge these statements as hearsay if provided by a JDB...correct?

To get around the hearsay argument of providing statements a JDB will likely just argue that the statements are subject to a hearsay business record exemption. Under this exemption,at least in my state, these records can then be admitted without authentication because they can be viewed as self authenticated documents IF certain conditions are met. The requirements for self-authentication of business records in my state basically boil down to the records being accompanied by an affidavit or statement under oath from the record's custodian or "other qualified person". Here in MI,this custodian or other qualified person then simply has to state in their affidavit that said records were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; that they were records of regular business activity etc. etc.

Here's one question....this "self-authentication" rule allow doesn't specifically require the records custodian, or "other qualified person" to be from the alleged OC. They simply have to declare that the records involved where made at or near the time of occurrence by a person with personal knowledge, or from information transmitted by a person with personal knowledge. IF the JDB argues business hear say exemption, and then with an affidavit from the JDB's "record's custodian" declares the documents are self authenticating....what course of action would the defendant have? The JDB could simply argue THEY received the records from the OC and that due to this THEY know and declare the records are authentic and made by a person with, or from info transmitted BY, a person with first hand knowledge.

A pro se defendant would then be FORCED to depose, subpoena, or otherwise question the jdb's record's custodian would they not? I know from first hand experience the plaintiff will simply object to any Discovery requests pertaining to the resume, work experience, or other info about their "records custodian". Since in these cases the affiant is usually many states and hundreds or thousands of miles away, subpoenas and deposition etc would likely be far too expensive for most pro se defendants to bother with.

Am I over thinking all of this? I'm just trying to get an idea of how successful challenging authenticity of alleged cc statements provided by JDB is. It doesn't look like it happens all that often in my jurisdiction, and it looks like the plaintiff would have a variety of good ways to knock the wind out of the sails of any defendant that steps down this path. THOUGHTS?

[SingleDadJames]

I also have another, not quite so long-winded, question to pose

When looking over my states rules of evidence for what the actual requirements of authentication are I first came across this little gem:

"Rule 901 Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

WTF does this mean?

Authentication is satisfied by evidence sufficient to support the claim that those alleged credit card statements are exactly what the JDB states they are...so in other words it's left incredibly general and open for the Court to decide what is authentic and not???

So in other words absent some definite court opinion and caselaw that shows a signed and sworn statement from the alleged OC MUST accompany any alleged CC statement provided by the JDB, you are probably SOL challenging their authenticity.

[admin]

Sometimes, it boils down to the judge and how they have ruled in the past. Unless you can provide adequate case law and your arguments seem logical, they can't really ignore you.

For instance, let's say you wanted someone to provided authentication. The bank provides every statement they have on you from the beginning (or several years back) up until your last payment. I've seen this. You could argue that the documents aren't authenticated, could have been created with Photoshop and should be thrown out. It's possible, but is this LIKELY? Probably not. If they've made a stab at an affidavit, most likely this will be good enough.

I have a friend whose bank hasn't come up with anything but one statement. This is way easier to dispute. Their affidavit was total crap. She is successfully fighting them off.

[Guest usctrojanalum]

A prominent non-for-profit hospital which I have attended often sold a pool of receivables to a third party company (by my count in Court records I have pulled at least 30 million in medical receivables were sold).

I pulled 200 cases from my local court over the past 3 years. It actually cost me like $400 to do so in copying pages and other stuff like archive retrieval fee (lol what?) but it was well worth the research and knowledge I gained.

Now in this Court, in order for the Plaintiff - a JDB to obtain what is called a clerk's default judgment (a regular default judgment for semantics sake). The Court would grant judgment with JUST the affidavit of the manager from the third party company.

However, I noticed when a defendant answered - within 2 months the cases always moved to motion for summary judgment stage. And in the MSJ the Plaintiff who was called MRF LLC would have a copy of the medical bill, an affidavit from the manager AND an affidavit from the director of patient services from the hospital.

Now, I thought this was strange. Howcome to get a regular clerks default judgment the plaintiff was only providing an affidavit of the manager of MRF LLC and not the affidavit of the hospital employee?

After doing a little more research, I learned that a judge never looks at a regular default judgment, or what is commonly called a clerk's default judgment. The Clerk of the Court is the one who issues these judgments. All they do is check for an affidavit (some clerk's will require a bill or a statement or invoice) from the plaintiff stating that the balance is correct and that the balance or the bill/statement/invoice match the balance the defendant is being sued for.

A judge on the other hand, might question the fact that the OC has not provided an affidavit authenticating the evidence provided by the JDB. But, this could solely depend on the judge. The judge might think the affidavit of the JDB is enough! You have to argue before that judge listen, how does this person from the JDB know what the heck went on with the OC's office? How can they verify the balance? They can't! Hopefully most judges agree with you, but there are still some of there out there who will not.

[single317dad]

However, I noticed when a defendant answered - within 2 months the cases always moved to motion for summary judgment stage. And in the MSJ the Plaintiff who was called MRF LLC would have a copy of the medical bill, an affidavit from the manager AND an affidavit from the director of patient services from the hospital.

One of my JDBs pulled this stunt. Initial complaint contained no evidence. Judge sent it back, with requirements. JDB filed amended, including 1 statement (no acct #), 2 bill of sale, partial agreement. I answered + MTS bill of sale + sworn denial. JDB files MSJ + affidavit + a huge stack of statements w/acct #.

My take: it wasn't necessary for a default judgement to produce all that paperwork. They probably had it all stored electronically, and no need to print it out until I had answered. It's probably a standard "Step 2" in the manual. I feel good about it though, as I now have more time and have learned more and should be better able to fight this "new evidence".

[Xcalibar]

There is an Ohio Appellate Case TARGET NATL. BANK v. Enos 2010 Ohio 6307 which serves as a great primer regarding Summary judgment Evidence, inadmissible Evidence and the requirements for Authentication.

Once you digest this case, it should provide you with significant direction to fins similar cases from the Michigan Appellate Courts.

The case can be found on Google Scholar at the below link.

http://scholar.google.com/scholar_case?case=3390492879935248005&q=2010+Ohio+6307&hl=en&as_sdt=2,36&as_vis=1

[Xcalibar]

You should research the HIPPA Laws regarding the release of patient information, there are some severe penalties for a medical service provider providing private medical information to a third party without the consent of the patient.

I believe that you said the JDB showed up in court with patient billing records, this a clear violation and is sanction able.

[cjb3]

be sure to meticulously go thru each statement and be sure their is a complete accounting showing how the amount they say you owe is calculated.

if your hearsay defense fails, maybe you can attack the "bill" if there are several statements missing.

statements should go all the way back every monbth since the account was $0.

i was sent an inch and a half of statements and 12 were missing.

[Guest usctrojanalum]

You should research the HIPPA Laws regarding the release of patient information, there are some severe penalties for a medical service provider providing private medical information to a third party without the consent of the patient.

A lot of the time you give this consent before you are treated, 95% of the time I doubt the patient even realizes that they give this. The last time I was in a hospital I actually read what was called a "Consent to treatment form" (I guarantee almost no one reads this document) and there was a whole paragraph dedicated to me authorizing the release of any information including but not limited too medical bills/records/notes/memorandum with regard to the collection of any outstanding debt owed to the hospital.

[single317dad]

The last time I was in a hospital I actually read what was called a "Consent to treatment form" (I guarantee almost no one reads this document) and there was a whole paragraph dedicated to me authorizing the release of any information including but not limited too medical bills/records/notes/memorandum with regard to the collection of any outstanding debt owed to the hospital.

I've read something similar here, and I have to wonder if it would stand up if challenged. First, one could claim they were in pain/gravely ill/otherwise not in a position to properly comprehend and make that decision at time of hospital admission.

More importantly, I wonder if that type of information release is even allowed under HIPAA. My last job dealt extensively with electronic records and their safekeeping, and I was instructed (though never shown any actual *law* to this effect) that no patient record could be divulged without a specific release for that purpose from the patient for each instance. If that is true, then a blanket release would be worthless.

[Zulator]

I've been reading and wading through posts on this forum, and other websites for a long time now. I wanted to pose a question for the forum on just ONE of many things I'm having a hard time wrapping my overloaded head around: Alleged copies of credit card statements provided by a JDB and the need for "authentication" of these documents for admisibility as evidence.

Over and over again in this forum I see the argument that alleged copies of credit card statements mean nothing unless the plaintiff is the OC and provided them. If they are provided by a JDB or other third party then the consensus on this board seems to be they are hearsay and that the statements need to be authenticated by the OC.

In my research however I keep seeing cases where a simple affidavit and alleged copies of original credit card statements from the JDB were plenty of info to slam dunk the case in favor of the Plaintiff. The statements generally seem to be entered into evidence without much of a fight and I just haven't come across many cases that indicate these statements had to be authenticated, were authenticated, or even where admissibility on the basis of authenticity was really challenged. It just looks like for the most part when statements are entered they are simply accepted by the court and the parties involved....but I'm hoping other members here can help point out some cases where I can look at the authenticity being challenged and even see if it's ever been successful.

The way I see it, alleged credit card statements provided by a JDB are nothing more than hearsay w/o some sort of authentication or foundation to show that they were provided by the OC. Since I don't want to go into trial looking like any MORE of a fool than I already do for proceeding pro se, I'm trying to play devil's advocate here.

Of course if the admission of statements isn't challenged by the Defendant the court is going to allow them as evidence. So the first step would logically be to object, motion to strike, or other wise challenge these statements as hearsay if provided by a JDB...correct?

To get around the hearsay argument of providing statements a JDB will likely just argue that the statements are subject to a hearsay business record exemption. Under this exemption,at least in my state, these records can then be admitted without authentication because they can be viewed as self authenticated documents IF certain conditions are met. The requirements for self-authentication of business records in my state basically boil down to the records being accompanied by an affidavit or statement under oath from the record's custodian or "other qualified person". Here in MI,this custodian or other qualified person then simply has to state in their affidavit that said records were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; that they were records of regular business activity etc. etc.

Here's one question....this "self-authentication" rule allow doesn't specifically require the records custodian, or "other qualified person" to be from the alleged OC. They simply have to declare that the records involved where made at or near the time of occurrence by a person with personal knowledge, or from information transmitted by a person with personal knowledge. IF the JDB argues business hear say exemption, and then with an affidavit from the JDB's "record's custodian" declares the documents are self authenticating....what course of action would the defendant have? The JDB could simply argue THEY received the records from the OC and that due to this THEY know and declare the records are authentic and made by a person with, or from info transmitted BY, a person with first hand knowledge.

A pro se defendant would then be FORCED to depose, subpoena, or otherwise question the jdb's record's custodian would they not? I know from first hand experience the plaintiff will simply object to any Discovery requests pertaining to the resume, work experience, or other info about their "records custodian". Since in these cases the affiant is usually many states and hundreds or thousands of miles away, subpoenas and deposition etc would likely be far too expensive for most pro se defendants to bother with.

Am I over thinking all of this? I'm just trying to get an idea of how successful challenging authenticity of alleged cc statements provided by JDB is. It doesn't look like it happens all that often in my jurisdiction, and it looks like the plaintiff would have a variety of good ways to knock the wind out of the sails of any defendant that steps down this path. THOUGHTS?

You are freaking me out a little. I have not heard of a plaintiff getting a slam dunk with just an affidavit and a cc statement. That is the impression the scumbag lawyer tried to give me however. The statement they provided shows no activity and does not have the same OC or acct # as on the affidavit. The only ting that matches is the amount oddly enough.

[SingleDadJames]

You are freaking me out a little. I have not heard of a plaintiff getting a slam dunk with just an affidavit and a cc statement. That is the impression the scumbag lawyer tried to give me however. The statement they provided shows no activity and does not have the same OC or acct # as on the affidavit. The only ting that matches is the amount oddly enough.

Well I guess I should qualify and say that the statements usually reflect some transactions and or an alleged payment. I would definitely think you would have a great point to argue a statement w/ an account # very different from the one referred to in the affidavit.

I'm not trying to freak anyone out...but I was just pointing out that I have seen plenty of cases in my research where alleged statements from a JDB and an affidavit were enough. Not one statement showing nothing and an incorrect account number....but some statements showing charges/alleged payments.

We always talk about challenging the fact that records, statements etc aren't authenticated and aren't inadmissible. It appears, at least in MI, that a decent attorney could argue they don't need to be. If they REALLY want to push the issue if you challenge they could likely manufacture any info they really need anyway. If JDB's etc are manufacturing false affidavits, it's not too far of a stretch to assume the might go ahead and manufacture other documentation they need. IF that happens ultimately the only recourse you would likely have is depose, subpoena the applicable witnesses, etc. I can't speak for anyone else...but as a pro se I'm not rolling in cash and the costs involved in deposition or to subpoena a witness and also paying their travel expenses, mileage etc are pretty much out of the question.

I suppose IF the plaintiff calls their own witness to authenticate then you get to challenge authenticity "for free".

[SingleDadJames]

be sure to meticulously go thru each statement and be sure their is a complete accounting showing how the amount they say you owe is calculated.

if your hearsay defense fails, maybe you can attack the "bill" if there are several statements missing.

statements should go all the way back every monbth since the account was $0.

i was sent an inch and a half of statements and 12 were missing.

Thanks cjb3! I have some missing statments in my case as well, but this is yet ANOTHER point I hope someone can help clarify.

I have frequently seen the argument that a Plaintiff has to provide a complete account from a balance of $0.00. I haven't found any law, or caselaw, here in MI, that indicates that is true. Usually the argument is, at least under account stated, that by simply making a voluntary payment on the account a defendant has agreed to the accuracy of the balance claimed owed.

I've been arguing they haven't shown how the balance was calculated etc.

[SingleDadJames]

There is an Ohio Appellate Case TARGET NATL. BANK v. Enos 2010 Ohio 6307 which serves as a great primer regarding Summary judgment Evidence, inadmissible Evidence and the requirements for Authentication.

Once you digest this case, it should provide you with significant direction to fins similar cases from the Michigan Appellate Courts.

The case can be found on Google Scholar at the below link.

http://scholar.google.com/scholar_case?case=3390492879935248005&q=2010+Ohio+6307&hl=en&as_sdt=2,36&as_vis=1

Awesome Xcalibar...this is exactly what I was hoping this thread would help accomplish. If we can point out caselaw to back up what we SAY (as we'd have to do in court) or at least point each other to places to start more research it's a great thing!

I'm off to check out the case you posted. Thanks again!

[daybyday]

Here's one that I found and used in my first MSJ, just filed it in my reply to the plaintiff's response, so its unproven.

Whereby in a recent Missouri Court of Appeals opinion filed by the Southern District dated October 29, 2010 in the matter of Discover Bank vs Kenneth Smith, the appellant court determined that : While the seriatim recitals of the prerequisites encompassed in section 490.680 may appear at first blush to be but talismanic formulas whose mere recitations at trial bring about a magical acceptance of a document into evidence, each statutory requirement, nevertheless, is grounded upon reason, verity and efficiency. As explained in Matter of Estate of White, 665 S.W.2d 67, 69 (Mo.App. 1984), inconstruing [section] 490.680 it has been observed that simply because a record is in writing and part of a financial transaction, it is not automatically qualified as a business record under the Uniform Business Records as Evidence Law. The reason for recognizing a business record as an exception to the hearsay rules the presumptive verity of routine recording of business transactions done on a regular basis at times close to the transactions recorded. The foundation which warrants the presumption of verity must be laid to qualify the records for admission.

Therefore the Defendant asserts that the Plaintiff has not laid a legally sufficient foundation for the documents provided and do not conform the business record exemption to the hearsay rule. Therefore the Monthly Account Statements; The Application; Affidavit; Card Agreement; are hearsay and should not be admitted into evidence.

490.680 is our state statue for business exemption.

Appeals Court SD30117, the opinion filed has not passed the rehearing time frame, so it is not case law, yet.

*

[Zulator]

Well I guess I should qualify and say that the statements usually reflect some transactions and or an alleged payment. I would definitely think you would have a great point to argue a statement w/ an account # very different from the one referred to in the affidavit.

I'm not trying to freak anyone out...but I was just pointing out that I have seen plenty of cases in my research where alleged statements from a JDB and an affidavit were enough. Not one statement showing nothing and an incorrect account number....but some statements showing charges/alleged payments.

We always talk about challenging the fact that records, statements etc aren't authenticated and aren't inadmissible. It appears, at least in MI, that a decent attorney could argue they don't need to be. If they REALLY want to push the issue if you challenge they could likely manufacture any info they really need anyway. If JDB's etc are manufacturing false affidavits, it's not too far of a stretch to assume the might go ahead and manufacture other documentation they need. IF that happens ultimately the only recourse you would likely have is depose, subpoena the applicable witnesses, etc. I can't speak for anyone else...but as a pro se I'm not rolling in cash and the costs involved in deposition or to subpoena a witness and also paying their travel expenses, mileage etc are pretty much out of the question.

I suppose IF the plaintiff calls their own witness to authenticate then you get to challenge authenticity "for free".

I hear what you are saying. You would think a photocopied statement would not be enough evidence in most cases. it is very easy to ask an OC to manufacture one. It really makes me wonder where the JDB even gets these statements?

[Fats]

Here is my two cents worth. They must prove that they have the right to sue for this debt. So even though they have statements and so called other proof, they still must prove to the court that they have a right to sue you for this debt. SO, make them prove that they have that right. Did they buy your debt? Just them saying that they bought a group of debt, was your debt in that group.?

[antiquedave]

in another thread I saw where the source of the alleged payment was questioned, what account was this payment posted from? copies of cancelled checks? what is the source of the statements? is there an affidavit from a person with orignal knowledge and authorized acccess to the documents that can respond to a request for admissions? shoot forgot the right term

[Vark]

be sure to meticulously go thru each statement and be sure their is a complete accounting showing how the amount they say you owe is calculated.

if your hearsay defense fails, maybe you can attack the "bill" if there are several statements missing.

statements should go all the way back every monbth since the account was $0.

i was sent an inch and a half of statements and 12 were missing.

so how did you point that out to the court? I have many statements as well, except for the first 8, that show the initial purchase

[brody445]

This is a GREAT thread! I've been wondering the same things myself - the alleged statements seem like the most damaging form of evidence to me - although I'm just starting out (just recently sued) so have no real experience.

Anyhow, one thing I came across on the web, don't recall the state, but the logic might be universal, is that to sneak in under the business record exemption, the statements have to be produced as part of "normal" business operations. This article (or post) made the point that these "facsimile" statements, presumably printed AFTER the case has already been initiated have not been produced as part of "routine" business, rather produced AFTER a legal action has commenced. The writer went onto make the point that even for a JDB, once involved in a suit, nothing is "normal" business from that point forward and records produced after the fact would not not meet the test since they weren't produced under "normal" operations. I guess the next trick would be determined exactly when they were produced and what counts as production. Logically, the "copies" could be argued to have been printed after the fact as they almost never are attached to the initial complaint - but will this convince a judge? Regardless, hy wouldn't a JDB attach them to initial pleading if they had 'em? I think we know why they don't. According to the one Resellers webpage (the company that buys direct from OC, then repackages smaller parcels for sale to the JDBs) the "media" must be purchased for between $5 to $25 per page. I'm guessing the JDBs don't want to waste a penny they don't need to - so they wait to see if the defendant shows/responds to initial complaint - then purchase the "media" if they actually have to go to trial. Interestingly, affidavits from the reseller (what are these guys officially called?) can be had for $5 each and they also claim to be able to provide affidavits from the OC also.

Brody

[brody445]

Oh, forgot one of my questions. Say that for the sake of argument everyone admits that the actual printing DID take place once account was in JDBs hands - does that matter in relation to the info contained on the statements, which is dated?

-Brody

[BV80]

This article (or post) made the point that these "facsimile" statements, presumably printed AFTER the case has already been initiated have not been produced as part of "routine" business, rather produced AFTER a legal action has commenced.

Copying an existing document is allowed. That's done all the time.

If the writer defines producing as "creating" a document, I can agree with that. They can't just create a new document such as an accounting statement and make it appear as if it was created before litigation.

But if he's just talking about a copy of a document that already exists, such as a copy of a cc statement from the OC, that's allowed. Copying an original document has nothing to do with creating a new document.

Perhaps I'm misunderstanding what he was trying to explain. Did he include any statutes or case law to explain his position?

Edited March 9, 2012 by BV80

[calawyer]

SDJ:

You have stated the problem in a very articulate manner. This is precisely the problem a JDB faces at trial. How to introduce as evidence documents it did not create or maintain and as to which it therefore has no personal knowledge.

There are two main ways they can get them admitted:

1. By YOUR testimony. They show you a statement and ask if you have seen it before. Is that your address on the statement? Did you live at that address during the time period in question? Did you regularly receive mail at that address? Did you in fact receive the statements each month?

2. By failing to object! In most courts you can waive most evidentiary objections. So, if they try to submit the documents into evidence, and the defendant does not object, they will often be admitted into evidence.

It may be that your court rules permit testimony of a custodian by way of affidavit but I would check to make sure. Trial is the place to have disputes resolved by testimony and cross examination. You can't cross examine an affidavit. That is why, for example, California has a procedure where, in certain small dollar cases, affidavits may be used. However, they must be served on the other side in advance of trial and an address provided where the affiant can be served. So, if the defendant thinks the affidavit is BS, she can serve a subpoena on the witness and actually cross examine at trial. If there is no dispute about what the witness says in the affidavit, everyone saves a lot of time.

Unless you are sure that affidavits can be used at trial in your jurisdiction, you should object on hearsay (and any other applicable grounds) if plaintiff seeks to introduce one.

[legaleagle]

They can't just create a new document such as an accounting statement and make it appear as if it was created before litigation.

Didn't you ever hear of Countrywide? Look up the Sharon Diane Hill bankruptcy case in PA. CHL faked docs and their lawyers got sanctioned and forbidden to ever practice in Judge Agresti's court again. They did the same thing in my case, this is going to be a lot of fun when I submit 6-7 documents to prove they faked a good faith estimate.

[BV80]

They can't just create a new document such as an accounting statement and make it appear as if it was created before litigation.

Didn't you ever hear of Countrywide? Look up the Sharon Diane Hill bankruptcy case in PA. CHL faked docs and their lawyers got sanctioned and forbidden to ever practice in Judge Agresti's court again. They did the same thing in my case, this is going to be a lot of fun when I submit 6-7 documents to prove they faked a good faith estimate.

Oh, yeah. I read about that. That's why I said they can't just create a new document such as an accounting statement and make it appear as if it was created before litigation. Well, they CAN, but we shouldn't let them get away with it.

Me thinks you may be having a little too much fun with your case.