Question regarding Hearsay in MI Civil Procedure Rules

[Swissy]

My trial is this week, I was strung along by Michigan Legal services thinking they were going to help me only for them to say they can't/won't and now I'm most likely screwed.

For starters I'm not entirely sure how to go about using Hearsay. I have no fiduciary agreement with the JDB. WAMU was the OC, went bankrupt, government basically took their debts and sold them to Chase. Chase is assigning Velocity Investments, and then Velocity has a CA. In the complaint on the summons they attached a few statements from the credit card, which is WAMU, so I figured I could just object to that at trial, but I am reading a lot of conflicting things. Was I supposed to file a motion to strike affidavit? Do I have any viable options at this point? Court date is 3/10

Trying to keep this short, but figured a question may come up on the complaint, so I'll write it in:

Now comes Plaintiff Velocity Investments, LLC, assignee of Chase Bank Usa, Na., by and through its attorneys, XXXXXXXXXX, and for its complaint against the Defendant, states as follows.

1. That the Defendant herein is indebted upon open account or pursuant to be contract, and defendant accepted same. (Original Account Number : xx)

2. Performance has been completed and defendant agreed to pay the account.

3. There is presently due and owing, over and above all legal counter claims, the principal sum of $6,643.57, plus accrued Interest in the amount of 1,510.92.

4. Plaintiff requests judgment for $8,154.49, plus interest, costs and attorney fees. I declare the statements above are true to the best of my information, knowledge and belief.

Respectfully submitted,

(signed by an attorney)

ugh.

Er, forgot to mention (was the basis for this post ), when I use the .pdf search function in my Civil Procedure Rules for "hearsay", I'm not finding anything.

Thanks

Edited March 7, 2011 by Swissy

[SingleDadJames]

Er, forgot to mention (was the basis for this post ), when I use the .pdf search function in my Civil Procedure Rules for "hearsay", I'm not finding anything.

Thanks

Rules pertaining to hearsay are going to be found in the Michigan Rules of Evidence

You can find them here

(Since your post count is low you probably can't view the url or link)

Go to http: / / coa DOT courts DOT MI DOT gov

and look for the MI rules of evidence.

You'll find hearsay rules there! You can also just google "Michigan Rules of Evidence" and I'm sure you'll find what you are looking for!

[Swissy]

Rules pertaining to hearsay are going to be found in the Michigan Rules of Evidence.........

Yeah found rules of evidence before going to bed, but still don't know how to use it. 'Objection your honor those statements are Hearsay, rule 803 of rules of evidence.' ? I'm guessing its 803, but of the sub texts for 803 I don't know which one actually fits, they don't make a lot of sense to me.

[SingleDadJames]

Yeah found rules of evidence before going to bed, but still don't know how to use it. 'Objection your honor those statements are Hearsay, rule 803 of rules of evidence.' ? I'm guessing its 803, but of the sub texts for 803 I don't know which one actually fits, they don't make a lot of sense to me.

Well whatever you believe is hearsay would be defined as hearsay under MRE (Michigan Rules of Evidence) 801. You would then object to it under MRE 802 which says that hearsay is inadmissible except as provided within the rules.

MRE RULE 803 (and I know it's confusing) is basically a list of all the exceptions/exemptions to the hearsay rule. In other words if you object to something because you believe it is hearsay the plaintiff would likely use something from that long list under 803 to counter your objection.

In a trial how detailed you have to say something is going to vary a lot just based on how "strict" the judge runs their courtroom and whether it's a bench or jury trial. The judge in my case was pretty laid back and I probably could have just said "I object based on the fact that EXHIBIT #1 is hearsay"

However if you want/need to get technical you might be able to say something like:

"Your honor I object to Exhibit #1 because it meets the definition of hearsay under MRE Rule 801 and is thus inadmissible pursuant to MRE 802."

You could always just say you object because it is hearsay and then have some notes written down to quote specifically if you need to.

I was worried a judge wouldn't take to kindly to a lowly pro se defendant trying to play attorney with a bunch of legal speak so I only got technical when I wrote my pleadings and when I HAD to orally.

Hope that helps!

-"James"

[Swissy]

Well whatever you believe is hearsay would be defined as hearsay under MRE (Michigan Rules of Evidence) 801. You would then object to it under MRE 802 which says that hearsay is inadmissible except as provided within the rules.

MRE RULE 803 (and I know it's confusing) is basically a list of all the exceptions/exemptions to the hearsay rule. In other words if you object to something because you believe it is hearsay the plaintiff would likely use something from that long list under 803 to counter your objection.

In a trial how detailed you have to say something is going to vary a lot just based on how "strict" the judge runs their courtroom and whether it's a bench or jury trial. The judge in my case was pretty laid back and I probably could have just said "I object based on the fact that EXHIBIT #1 is hearsay"

However if you want/need to get technical you might be able to say something like:

"Your honor I object to Exhibit #1 because it meets the definition of hearsay under MRE Rule 801 and is thus inadmissible pursuant to MRE 802."

You could always just say you object because it is hearsay and then have some notes written down to quote specifically if you need to.

I was worried a judge wouldn't take to kindly to a lowly pro se defendant trying to play attorney with a bunch of legal speak so I only got technical when I wrote my pleadings and when I HAD to orally.

Hope that helps!

-"James"

Ok, that makes more sense. I just figured it wouldn't be that easy, and guess I was reading 803 backwards as if that list was for me to apply along with my hearsay. Will I need a case citation? The attorney that left me hanging offered some advice: When in trial the attorney most likely will try to admit a bill of sale and that I should object on two grounds.

1. Hearsay and

2. Not relevant because the bill of sale will not contain my card number.(iffy)

True? Will I need a case for citation for this or anything else?

I know I'm asking a lot, but I'm reading everyday all day long and it's very grueling and time is not on my side so I appreciate yours.

Other notes. The summons was the only communication I had, no dunning letter or whatever that I know of. There wasn't an original contract either but I have no idea what they are bringing for evidence. At the pretrial the judge didn't really address me, and the attorney was just on speaker phone and she spoke with him. In the pre trial form the judge filled out, for discovery it says "Discovery shall be completed no later than __________" which she didn't fill in. Does that give me the ability to bring motions to the trial? And in the motions on the form, I think (no idea what her hand writing says) she put "Def intends to file a motion for summary disposition." Not sure what that is about either.

(forgot to add, it is a non-jury trial)

Edited March 7, 2011 by Swissy

[SingleDadJames]

Will I need a case citation?

I can't say for sure whether or not you'd need to cite caselaw to support a hearsay objection at trial because my trial didn't go quite that far. I wouldn't think caselaw would be required for a cut and dry hearsay objection but then again prepare for everything! I would recommend you be prepared for everything and try to anticipate each one of your objections and especially your arguments with specific rules of evidence, rules of civil procedure, and caselaw.

The attorney that left me hanging offered some advice: When in trial the attorney most likely will try to admit a bill of sale and that I should object on two grounds.

1. Hearsay and

2. Not relevant because the bill of sale will not contain my card number.(iffy)

True? Will I need a case for citation for this or anything else?

Sounds like sound advice to me and that's pretty much the strategy I was using. I'm no attorney so take it for what it's worth. (NOTHING ) Basically the OC was WAMU so unless the credit card statements come along with a certification/statement FROM the OC declaring that they are true and accurate copies of OC account statements I'd object to them as hearsay. You should also have the right to question someone from the OC at trial regarding the alleged statements as well.

Questioning a questionable bill of sale is certainly something I would do. They sued you and it sounds like you've objected and denied. They need to prove that they own this specific alleged debt and the rights and interest to it. If they can't they lack standing to even sue you in the first place.

Most often a Junk Debt Buyer will produce a bulk bill of sale that says little more than a large pool of accounts was sold from one company to another. In these cases the bill of sale does not ever mention a specific account. They'll then attach a "redaction" which is often little more than a piece of paper with the alleged account number and your name and the alleged balance in an effort to link the bill of sale to the alleged account

With regard to a bill of sale, personally I'd object and question anything less than an authenticated bill of sale from the OC showing the sale of a specific debt that I know was mine. If its not from the OC I'd object as hearsay. If it doesn't list the specific alleged debt I'd object on the grounds that it doesn't specifically show sale of the alleged debt and assuming it does creates an unfair prejudice against you.

There wasn't an original contract either but I have no idea what they are bringing for evidence. At the pretrial the judge didn't really address me, and the attorney was just on speaker phone and she spoke with him. In the pre trial form the judge filled out, for discovery it says "Discovery shall be completed no later than __________" which she didn't fill in.

Unfortunately as things stand you are going to have to go to trial blind with no idea of what sort of evidence they have. This is what you would have figured out a little more in Discovery when you requested production of documents and sent your interrogatories and requests for admission.

That doesn't mean you can't be prepared. Personally I'd prepare myself to object to ANYTHING and everything on the basis of hearsay and relevancy.

If it didn't come from the OC and the Plaintiff hasn't proved they own the alleged debt with a specific bill of sale anything the JDB offers up is hearsay.

I'd argue anything they (the JDB) submits as evidence has to have foundation and needs to be authenticated.

Even though you don't know for sure what they will produce for evidence you can still be prepared. When you break it down there are really only so many things they can spring on you. Alleged credit card statements, alleged credit card statements from the OC, a bulk bill of sale, a witness from the JDB, etc etc. You just need to try to think of the likely scenarios and come up with a game plan. You need to prepare for the worst but also realize you might walk in and not need any of it!

As far as Discovery goes unfortunately in most cases in MI Civil/District court Discovery isn't going to happen unless someone requests it. The Plaintiff may feel they have an open and shut case and don't need anything other than what they already have. There is also a possibility that they can't obtain anything other than the statements they've produced. One thing is for sure, they certainly aren't going to work any harder than they have to.

The date for Discovery was probably left blank because noone ever requested Discovery in the first place. If your trial is this week it's far too late for Discovery. You might be able to ask for a continuance to conduct Discovery, but I'm not sure when the court would consider it "too late" to do so.

Even if the court puts the trial "on hold" for Discovery it may not be in your best interest. It could just be giving them more time to obtain/manufacture evidence to use at trial and make your job as a pro se more difficult.

Does that give me the ability to bring motions to the trial?

I'm not sure what you are asking here. If you are wondering about bringing a motion for Discovery at trial it would be too late at that point. Whether or not you could ask for a continuance to conduct Discovery I'm not sure, but it seems pretty unlikely a judge is going to agree to that the day of trial.

As for the "Discovery must be completed by__________" line being left blank, that has absolutely no bearing on your ability to file a motion or bring a motion orally at trial.

Whatever you ask of the court in a motion (either written or oral) you need to be prepared to cite court rules and supporting case law.

[Swissy]

I'm not sure what you are asking here. If you are wondering about bringing a motion for Discovery at trial it would be too late at that point. Whether or not you could ask for a continuance to conduct Discovery I'm not sure, but it seems pretty unlikely a judge is going to agree to that the day of trial.

As for the "Discovery must be completed by__________" line being left blank, that has absolutely no bearing on your ability to file a motion or bring a motion orally at trial.

Whatever you ask of the court in a motion (either written or oral) you need to be prepared to cite court rules and supporting case law.

Probably wrote it wrong. Only have time to reply to this part of the quote but will be back in hour and a half.

I was thinking more along the lines of Dismissal of Complaint (assuming I have there evidence thrown at for hearsay.) I'm probably off, but just reading through the sample motions, forms, affirmative defenses.

Can't post link but its creditinfocenter dot com /forums/showthread.php?t=252142

Speaking of defense though do I have to have a defense? I'm guessing I answered the complaint somewhat wrong not sure. Was basically:

I dispute the claim of the Plaintiff in its entirety

a). The existence of a contractual obligation to pay.

. The RIGHT of the Plaintiff or its assignee to bring lawsuit against you.

c). The amount allegedly owed.

d). The RIGHT of the Plaintiff to collect on the alleged debt.

e). The transferability of the alleged original contract.

I'm assuming that doesn't compel them to do anything.. Was some guide about answering summons, meh. Said to just plead the fifth and force them to do all the work but at this point the entire guide seems to be wrong.

[Swissy]

Ok so I'm trying to find some cases that have used "Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice", and also for hearsay. Does it have to be from Michigan cases, and also is there an easier way to find cases?

Google isn't doing me much good.

[SingleDadJames]

Ok so I'm trying to find some cases that have used "Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice", and also for hearsay. Does it have to be from Michigan cases, and also is there an easier way to find cases?

Google isn't doing me much good.

Ah I see you are now at the point in your self help research where you realize MI is in the dark ages when it comes time to do any legal research online

Are you just searching via the regular Google search page? I know doing things that way can turn up little help.

If you haven't yet try searching "Google Scholar" for MI court cases. You'll be limited to appeals and supreme court cases but searching Google Scholar was a HUGE help to me along the way.

scholarDOTgoogleDOTcom

[Swissy]

Ah I see you are now at the point in your self help research where you realize MI is in the dark ages when it comes time to do any legal research online

Are you just searching via the regular Google search page? I know doing things that way can turn up little help.

If you haven't yet try searching "Google Scholar" for MI court cases. You'll be limited to appeals and supreme court cases but searching Google Scholar was a HUGE help to me along the way.

scholarDOTgoogleDOTcom

Yeah I've been trying some searches with scholar as well, I guess I just don't know how to formulate the question to get an answer that pertains to my case. I've been trying like, MRE Rule 403, Rule 403 case citation, etc, and finding a lot of stuff that doesn't really apply

[SingleDadJames]

Yeah I've been trying some searches with scholar as well, I guess I just don't know how to formulate the question to get an answer that pertains to my case. I've been trying like, MRE Rule 403, Rule 403 case citation, etc, and finding a lot of stuff that doesn't really apply

Yes Google Scholar can be fickle. And the sad truth is there just isn't easy access to MI case law. Google Scholar is currently only going to return results for MI supreme court and appeals court cases.

If you are looking for credit card specific cases etc you just simply aren't going to find many. Unfortunately you'll have to search by keyword like you were doing and wade through the results. You'll just have to find cases that are similar and apply the case to your situation.

I don't want to insult your intelligence so forgive me if you've done all of this. It's easy to miss so I thought I'd mention it. Clicking on the "Advanced Scholar Search" link next to the search button will take you into the "advanced options" where you can narrow your search to exact keyword phrases, specific courts etc. Also make sure you limit your scholar search to ONLY "Legal opinions and journals" and focus on MI courts. This will at least narrow down the irrelevant junk.

Unfortunately researching cases is probably the most time consuming part and there is just no easy answer. If you can't find caselaw to support something in MI you can try listing something from another state but a MI court won't be bound by any of these decisions. They can take into it consideration however.

Regarding the bill of sale not showing the account number: I'd take a look at

UNIFUND v. Riley. It is an unpublished opinion, but it does seem to support the argument that a bill of sale should include the specific account #

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNIFUND CCR PARTNERS,

Plaintiff-Appellee,

UNPUBLISHED

February 18, 2010

v No. 287599

Wayne Circuit Court

NISHAWN RILEY, LC No. 07-732916-AV

Defendant-Appellant.

Before: Sawyer, P.J., and Saad and Shapiro, JJ.

Edited March 8, 2011 by SingleDadJames

[Swissy]

Yes Google Scholar can be fickle. And the sad truth is there just isn't easy access to MI case law. Google Scholar is currently only going to return results for MI supreme court and appeals court cases.

If you are looking for credit card specific cases etc you just simply aren't going to find many. Unfortunately you'll have to search by keyword like you were doing and wade through the results. You'll just have to find cases that are similar and apply the case to your situation.

I don't want to insult your intelligence so forgive me if you've done all of this. It's easy to miss so I thought I'd mention it. Clicking on the "Advanced Scholar Search" link next to the search button will take you into the "advanced options" where you can narrow your search to exact keyword phrases, specific courts etc.

Regarding the bill of sale not showing the account number: I'd take a look at

UNIFUND v. Riley. It is an unpublished opinion, but it does seem to support the argument that a bill of sale should include the specific account #

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNIFUND CCR PARTNERS,

Plaintiff-Appellee,

UNPUBLISHED

February 18, 2010

v No. 287599

Wayne Circuit Court

NISHAWN RILEY, LC No. 07-732916-AV

Defendant-Appellant.

Before: Sawyer, P.J., and Saad and Shapiro, JJ.

Hey james, no it doesn't insult my intelligence. I did try to use advanced scholar search, the issue is I don't know what I'm searching for. BV80 mentioned searching, michigan, debt, chain of ownership and I get few results. Also that I can use Sixth Circuit Court of Appeals (as that court includes appeals cases from Michigan) and from the U.S. Supreme Court.

Do you have a thread on here for your start-finish of your trial?

[SingleDadJames]

Hey james, no it doesn't insult my intelligence. I did try to use advanced scholar search, the issue is I don't know what I'm searching for. BV80 mentioned searching, michigan, debt, chain of ownership and I get few results. Also that I can use Sixth Circuit Court of Appeals (as that court includes appeals cases from Michigan) and from the U.S. Supreme Court.

Do you have a thread on here for your start-finish of your trial?

Yes MI is actually quite useless when it comes to finding caselaw. I have a thread that outlines my trial somewhere..but I don't think it will help much in the way of case law. I really didn't post much caselaw or any specific pleadings. I did outline some of my arguments and points but I think that won't help much either because my case was based primarily on account stated. Most of what I would have cited would have pertained to account stated anyway.

As I mentioned Unifund v. riley is a good one to use for the bill of sale not having an account number.

Searching scholar with the phrase "assignment of debt credit card" produced some results for me, but I don't really have time to read through the results to see if they would apply

I wish I could be more help but MI is terrible for finding caselaw. I suspect one of the problems is these cases end in a default judgment, settlement, or dismissal so often there just isn't much case law on record to begin with...let alone at the MI appeals or supreme court level.

[BV80]

This is in the Michigan Rules:

Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, 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 certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

This seems to say that records must be "made" by the Plaintiff or transmitted to the Plaintiff by someone who had knowledge of the information AND the business had to have kept those records as a course of their regular business activity and if it was regular activity to make those records.

The JDB does not make the records in the regular course of business. The OC does. The JDB does not "keep" or maintain those records in the regular course of business. The OC does. The JDB merely purchases the records and keeps them in a file. Under this rule, cc statements should not admissable because the JDB did not create them, therefore the affiant who signed the affidavit is not a "person with knowledge".

The JDB did not create the cc statements and did not maintain them as a regular course of business, therefore the cc statements are not exceptions to the hearsay rule. They are, in fact, hearsay.

Next Rule:

Rule 902 Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(11) Certified records of regularly conducted activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that

(A) The record was 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;

( The record was kept in the course of the regularly conducted business activity; and

© It was the regular practice of the business activity to make the record.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

This states that records under the other rule, Rule 803(6), can be admitted if they are accompanied by a declaration (affidavit) from a person with knowledge such as a custodian that the record was kept in the course of regularly conducted business activity and it was the regular practice to MAKE the record. Was there an affidavit from the OC verifying the authenticity of the cc statements?

The JDB did not make the cc statments, and they were not kept (maintained) in the regular course of the JDB's business. That was the job of the OC. The cc statements do not comply with rule 803(6). If the JDB doesn't have an affidavit from someone who works for the OC who has personal knowledge of the business records, the cc statements have not been authenticated and do not comply with rule 902(11).

[antiquedave]

The best way I found to get case citations off from google was to search for the rule by MCR number and it brings up all of the cases that cite that rule

trying to search by topic was useless for me but as I read some of the cases that were related there were certain terms or words that I could pick out to add to the search and get some more specific cases

I am putting what I find here

http://usdebtweb.com/index.php?page=R/R-caselaw

[Swissy]

This is in the Michigan Rules:

Was there an affidavit from the OC verifying the authenticity of the cc statements?

The JDB did not make the cc statments, and they were not kept (maintained) in the regular course of the JDB's business. That was the job of the OC. The cc statements do not comply with rule 803(6). If the JDB doesn't have an affidavit from someone who works for the OC who has personal knowledge of the business records, the cc statements have not been authenticated and do not comply with rule 902(11).

No. Just the court house summons/complaint form, their typed complaint, and the CC statements.

So assume I go into court and I make the point of this, wouldn't that make anything else they have worthless since this is the only reason I'm in court? And could motion for summary judgment?

[Swissy]

The best way I found to get case citations off from google was to search for the rule by MCR number and it brings up all of the cases that cite that rule

Can you give me an example, of your search? I searched "mcr 403" for example and I got 1 hit, guessing that's wrong.

Edited March 8, 2011 by Swissy
nvm, searched MRE 403 and getting many, hopefully find more ty.

[SingleDadJames]

Can you give me an example, of your search? I searched "mcr 403" for example and I got 1 hit, guessing that's wrong.

It would be MRE 403 or MRE 803(6) since they are Michigan Rules of Evidence

If you are searching for a rule found in the Michigan Rules of Civil Procedure then you would search for MCR

MRE = The rules of evidence

MCR = The rules of civil procedure

MCL would be statutes etc.

If you don't format it right you'll definitely see very few results.

Edit-

I just noticed at the bottom of your last post that you already figured that out. Day late and a dollar short!

Edited March 8, 2011 by SingleDadJames

[SingleDadJames]

The best way I found to get case citations off from google was to search for the rule by MCR number and it brings up all of the cases that cite that rule

trying to search by topic was useless for me but as I read some of the cases that were related there were certain terms or words that I could pick out to add to the search and get some more specific cases

I am putting what I find here

http://usdebtweb.com/index.php?page=R/R-caselaw

That's how I did it as well. You just have to have the time to sift through and read the results. At least scan them to get an idea of whether or not the case applies. You'll find very few cases that match your case exactly. You just need to find similar situations and apply the case to yours. It takes time..but it also gives you a bunch of ideas for further arguments etc. once you start reading through the cases!

[SingleDadJames]

This is in the Michigan Rules:

Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, 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 certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

This seems to say that records must be "made" by the Plaintiff or transmitted to the Plaintiff by someone who had knowledge of the information AND the business had to have kept those records as a course of their regular business activity and if it was regular activity to make those records.

The JDB does not make the records in the regular course of business. The OC does. The JDB does not "keep" or maintain those records in the regular course of business. The OC does. The JDB merely purchases the records and keeps them in a file. Under this rule, cc statements should not admissable because the JDB did not create them, therefore the affiant who signed the affidavit is not a "person with knowledge".

The JDB did not create the cc statements and did not maintain them as a regular course of business, therefore the cc statements are not exceptions to the hearsay rule. They are, in fact, hearsay.

I don't want to get the thread too off topic, but I wanted to chime in on this.

In my case I used this same logic. The plaintiff then tried to rely on the fact that the information and records were transmitted by a person with knowledge. (i.e. "The merchant transferred the transaction info to the OC" or "the OC transferred the information to the Plaintiff")

I knew how to argue everything else but still wasn't sure how to deal with the "transmitted by" scenario other than to argue what proof did they have that the records/info were transmitted by a person with knowledge. They would ultimately have to proof it...at least that's what I was going to resort to. Show me evidence or testimony that demonstrates who transmitted the info. PROVE the transaction information was transmitted from the merchant to the OC. PROVE the OC sent you the information.

It never got to this point at trial but I can say the plaintiff will try to rely on the "transmitted BY a person with knowledge" argument. At least they did "on paper" in my case.

[BV80]

Just because they say it was transmitted by a person with knowledge doesn't make it so. Look at Rule 902...accompanied by a written declaration.

[BV80]

No. Just the court house summons/complaint form, their typed complaint, and the CC statements.

So assume I go into court and I make the point of this, wouldn't that make anything else they have worthless since this is the only reason I'm in court? And could motion for summary judgment?

Again you have read your court rules regarding motions for summary judgment or dismissal and when you're allowed to file such a motion.

[SingleDadJames]

My trial is this week, I was strung along by Michigan Legal services thinking they were going to help me only for them to say they can't/won't and now I'm most likely screwed.

... Do I have any viable options at this point? Court date is 3/10

I know you are getting close to your trial date and I have no idea how long ago legal services "abandoned" you, but if it was very recently I wonder if you could ask for a continuance b/c you lost legal representation?

This isn't going to fly if you knew about it 3 months ago..but if it JUST happened there is a small chance you could TRY asking for more time on the basis that you need to find legal representation etc.

If you are panicking last minute here it might be an option???

Probably unlikely but I thought I'd throw it out there.

I debated several times in my case on asking the court for more time. In the end panic always moved aside for "screw it...I just want this over with"

[Swissy]

I know you are getting close to your trial date and I have no idea how long ago legal services "abandoned" you, but if it was very recently I wonder if you could ask for a continuance b/c you lost legal representation?

This isn't going to fly if you knew about it 3 months ago..but if it JUST happened there is a small chance you could TRY asking for more time on the basis that you need to find legal representation etc.

If you are panicking last minute here it might be an option???

Probably unlikely but I thought I'd throw it out there.

I debated several times in my case on asking the court for more time. In the end panic always moved aside for "screw it...I just want this over with"

Heh, yeah I'm kind of at the point where I just want this over with. Thing is they never agreed to represent me or anything, but their process is very slow. They only see people on 2 dates out of the month. Was pretty hopeful. Got the guy on the phone and spoke with him for a little bit about the details and he basically said they can't really do anything cause they have a conflicting date on the same day as my trial, but he said he was going to mail me a letter with things I can say and do in court. Finally got that last week and it basically just says to say hearsay.

[SingleDadJames]

Just because they say it was transmitted by a person with knowledge doesn't make it so. Look at Rule 902...accompanied by a written declaration.

Well that's what I was saying in my long winded style

However the Plaintiff in my case was TRYING to imply that it didn't matter who the CUSTODIAN that wrote the written declaration worked for. In other words it was OK for the JDB to have their records custodian declare "Yes the records were transmitted to us from the OC and the records were a part of regularly conducted activity"

I'm pretty sure they were blowing smoke, and I suppose at that point it would come down to cross examination of their records custodian to testify to the details.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(11) Certified records of regularly conducted activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that

(A) The record was 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;

( The record was kept in the course of the regularly conducted business activity; and

© It was the regular practice of the business activity to make the record.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

Back to the OP and the case at hand, even in the highly unlikely event the plaintiff would provide a sufficient written declaration to accompany the info and comply with the rule above the OP could still object. At least I wold because I wasn't provided with "written notice of that intention" and the record and declaration weren't "Made available for inspection sufficiently in advance of their offer into eivdence"