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Georgia Business Records Hearsay Exception - Need Help


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Hey all, I need some help with a Motion to Strike an Affidavit in Georgia Superior Court.

I'm being sued by Midland Funding LLC on an alleged credit card account. I have answered their complaint and we have gone through the discovery phase. They have now filed a Motion for Summary Judgment and attached an Affidavit (with attachments) by a "Legal Spe******t" from Midland Credit Management, Inc (Supposedly the servicer of the account).

I was preparing to use the argument that this legal spe******t was not employed by the OC and had no knowledge of the business records of the OC, and therefore the Affidavit was inadmissible hearsay. However, I ran into this case law from the GA Appeals Court which seems to invalidate that argument.

Boyd vs. CALVARY PORTFOLIO SERVICES, INC. - 285 Ga. App. 390 (2007)

"[W]here routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business," such documents are admissible under OCGA § 24-3-14(B).[2] In Jackson, we affirmed the trial court's admission of mortgage loan documents on the testimony of an employee of the company, which had purchased the mortgage after it was made.[3] This is an analogous situation—Calvary purchased Boyd's account in the regular course of its business and received from AmeriCredit routine factual documents that became part of its own business records. And Georgia law favors the admission of evidence of even doubtful relevance or competency, with the weight to be given it left to the trier of fact.[4] Under these circumstances, any lack of personal knowledge by the affiants of the specific facts in the documents "would go to the weight of the evidence, not its admissibility."[5] Accordingly, documents attached to the affidavits were properly admitted as business records of Calvary, and the trial court did not err in granting summary judgment based on the evidence contained therein.[6]

The Affidavit in question has attached an alleged credit agreement (unsigned), an account transaction report, and a Bill of Sale from the alleged previous assignee to Midland Funding. I would like to get the credit agreement and account transaction report stricken, however, I am unsure how to proceed given the case law cited above.

BTW, so far they have not proven chain of title from the OC to the previous assignee and that is the main argument in my Opposition to Summary Judgment.

I welcome any advice. Thanks in advance.

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While I disagree with the court (yeah, who cares, I know, I don't get a vote), I'm not sure you're comparing apples to apples.

Look at the decision, it just says they are admissible in certain situations and then the trier of the facts determines the weight, which can still be zero. It just means the court ruled they were admitted into evidence properly, not they should be given any weight.

"Any lack of personal knowledge by the affiants of the specific facts in the documents "would go to the weight of the evidence, not its admissibility."

In other words, even if admissible you point out all the issues with lack of personal knowledge.

Don't get me wrong, it's not a case that works in your favor, but it's not fatal at all. It just means you have to argue in summary judgment there is a material issue for a trial. Winning in summary judgement and winning at trial are all together different.

On a side note, again, not comparing apples to apples. This, according to you, appears to be the second junk debt buyer. That is a whole different ballgame. I don't see how the quoted case would even be relevant.

The case you quoted, while I disagree with the ruling, appears to be where the Defendant just put all their eggs in one basket for summary judgement wanting to get the ruling overturned basically on a procedural error. If you have dueling affidavits, a legit dispute, attack on standing, defects with the documents as you pointed out, second buyer, no personal knowledge, you can concede they are admissible for purposes of summary judgment but then you have just raised multiple issues for a trial. Then at trial you can tear their so called witnesses a new one and show the court the so called witnesses lack of personal knowledge. Then court can give their testimony likely no weight.

For example, let's say my I introduced by check book register into evidence. The register says I have ten million dollars in the bank. Now you dispute that the register is inadmissible and that is your argument. The court disagrees and admits the check book and since you did not challenge the ten million dollar balance I win.

Now, let's say you challenge the admissibility and the accuracy of the check book. The court rules the check book can be admitted. So at trial the check book is admitted into evidence. So you then get me on the stand and destroy me and point out the obvious like I can say or write anything but I lack any foundation of proof I have ten million dollars. The judge 99.99% guaranteed will then rule in your favor, even though the check book was admitted into evidence.

In other words, garbage admitted into evidence is still garbage, it's now just admissible garbage. You attack the garbage for the garbage that it is, not the fact it got admitted into evidence.

Watch A Few Good Men at the end when Cruise admits the air tower log books that show no flight took place. The Judge says, basically, you're asking to admit evidence that does not help you. However, the log books were admitted into evidence. Then at the end after he wins, Bacon asks Cruise what his witnesses were going to testify to in authenticating the log books. Cruise says with a smile, they were going to testify they knew nothing, powerful witnesses, with a smile.

Same thing in your case, they might get something admitted but they are still going to be forced to prove their witnesses that authenticate, at trial, don't just "know nothing"

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Here is exactly what the law says in which the appeal court relied on.

© All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight; but they shall not affect its admissibility.

Keep in mind, this does not appear to address standing. You knock out their standing, who cares what gets admitted into evidence. The way I read this law and decision, it appears the issue of standing was never addressed.

That's why if you read a lot of my posts, you see I always point out I argued in court, I conceded owing the money and the documents were true and I owed the money, just not to who was suing me.

And again,

"We affirmed the trial court's admission of mortgage loan documents on the testimony of an employee of the company, which had purchased the mortgage after it was made."

And there would be your time when you would destroy the lack of personal knowledge, during testimony. An affidavit can't take the stand, in fact, you would actually want a b.s. affidavit, with no witness to cross to be admitted. You could destroy the affidavit and there would be no way for the other side to clean up the mess because an affidavit can't talk.

Edited by Coltfan1972
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Thanks for the advice Coltfan. That gives me a much better idea of how I need to proceed. I do have a few more questions if you don't mind.

1. What should I put in my dueling affidavit? I want to be truthful, but still present conflicting facts compared to the Plaintiff's affidavit.

2. In my Opposition for Summary Judgment, should I only argue the Plaintiff's lack of standing (based on lack of a valid assignment from OC), or should I argue all of the "genuine issues of material fact"?

3. At what point do I need to subpoena the Plaintiff's affiant? I'm assuming I need to wait until a trial date is set?

Thanks again for your help.

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"[W]here routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business,"

The language here suggests that the ACTUAL original documents must have been transferred by the entity that created them. That would involve the OC. It seems that all they provided in your case was a bill of sale showing that they bought X from another JDB. Where is your name referenced? Original account number? Billing statements, application, etc from the OC? Maybe in this case you cited, the OC actually provided enough documents to convince the judge. Your case seems to involve chain of title and standing to sue. They rarely have the documents, it isn't in their business model to pay for them. Most likely they cannot go back to the OC in your case, they didn't BUY the account from the OC. It will depend on what judge you get, some of them just don't like credit card cases.

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Here's some GA case law for a valid assignment:

"Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth's account number as one of the accounts Washington Mutual assigned to Cach." Wirth v. CACH, LLC., Ga: Court of Appeals 2009.

"In this case, the record shows that Citibank (South Dakota), N. A. ("Citibank South Dakota") issued a Diner's Club credit card to Benson. It also shows that Citibank USA assigned its rights under certain accounts to Asset Acceptance. It fails to demonstrate, however, that Citibank South Dakota assigned its rights in Benson's account to Citibank USA or that Citibank USA otherwise acquired the rights to Benson's account with Citibank South Dakota." Benson v. ASSET ACCEPTANCE, LLC, Ga: Court of Appeals 2011.

"In the absence of evidence showing that CPS received a valid assignment of contract rights making it the real party in interest to sue on the contract, the trial court erred in granting summary judgment in favor of CPS." Green v. CAVALRY PORTFOLIO SERVICES, LLC, 700 SE 2d 741 - Ga: Court of Appeals 2010.

Summary Judgment

"The burden is upon the moving party to establish the lack of a genuine issue of fact and the right to a judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant." Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442).

The above states the moving party (the one who filed the MSJ) has to prove they have a right to a judgment. If there's any doubts, then the MSJ should be denied.

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