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New Troubling Texas Case Law Regarding Business Records

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Check out this Texas case law regarding challenging 3rd party business records:

 

http://scholar.google.com/scholar_case?case=10612691797526674821&q=dodeka++campos&hl=en&as_sdt=4,44&as_ylo=2012

 

Here is the relevant excerpt:

 

"Finally, Campos [debtor] contends the [OC] records themselves are untrustworthy. However, we note that the creator of the documents, Chase, must keep careful records of its customer's accounts, otherwise its "business would greatly suffer or even fail." Id. at 244 (quoting Harris v. State, 846 S.W.2d 960, 964 (Tex.App.-Houston [1st Dist.] 1993, writ ref'd)). Furthermore, if Chase failed to keep accurate records, it could face criminal or civil penalties. Id.; see also TEX. FIN.CODE ANN. § 392.304(a)(8) (West 2006) (prohibiting consumer debt misrepresentation); TEX. FIN.CODE § 392.402 (providing criminal penalties for violations of Chapter 392 of the Texas Finance Code). We believe these circumstances lend support to Dodeka's [JDB] claim that the Chase documents are trustworthy."

 

Am I reading this wrong, or is this court basically saying that a JDB doesn't need to establish the reliabiltiy of the original records; they are simply assumed to be reliable (and somehow magically not hearsay) because the OC wants to make money and can get in trouble if they lie?

 

Here was the argument the debtor made:

 

"Campos contends Chaffin did not have sufficient personal knowledge to attest to Chase's business records because Dodeka is a third party who purchased the account and was not the original author of the documents. Further, Campos argues that Chaffin is not qualified to testify about Chase's documents because she did not indicate that she or anyone from Dodeka knew of the events or conditions recorded in Chase's records or had knowledge of the manner in which Chase prepared the documents"

 

Apparently, according to this court it doesn't matter that there was no personal knowlegde of the records when they were created; Chase's records are assumed to be trustworthy becasue they could "face penalties" otherwise. (This is especially ironic that this is Chase who is assumed to be trustworthy; see the affidavit to the government given by former Chase employee Linda Almonte.) 

 

What's especially galling about this is that they overturned the trial courts ruling. Since it was an apeal, they said "We will uphold the trial court's ruling on the exclusion of evidence if there is any legitimate basis for the ruling". So basically they are saying that the fact that there is no one that can attest to the veracity of the oc's documents is not a legitamate basis to exclude evidence.

 

This new interpreation of the business records hearsay exception seems insane to me.

 

The JDB afiidavit I received in my lawsuit includes almost the exact language from this case as to why the OC's records are reliable ("reliable because OC is required to keep good records by law and/or suffer busines loss").

 

I hope I am missing something, because this ruling seems to make it harder to exclude OC docs in Texas.

 

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Martinez v. Midland Credit Management, Inc.,250 sw3d at 485

Simien provided a three-prong test

The proponent must show that:

    

1) the documents are incorporated and kept in the course of the testifying

witness's business,

2) the business typically relies upon the accuracy of the contents of the

document, and

3) circumstances otherwise indicate the trustworthiness of the document

    

It must be recognized, however, that

Simien was not new law. The Simien decision was

rendered on April 15, 2010. There are at least six previous Texas cases discussing Third-

Party Records,many of which the Simien court relied upon in reaching its decision.

 

    

1)Cockrell v. Republic Mortg. Ins. Co.,817 SW 2d 106 (Dallas 1991);

 

2)GT &MC, Inc. v. Tex. City Ref., Inc., 822 S.W.2d 252 (Houston [14th Dist.] 1991;

 

3)Harris v State, 846 S.W.2d 960 (Houston [1st Dist.] 1993);

 

4)Bell v State, 176 S.W.3d 90 (Houston[1st] Be2004);

 

5)Martinez v. Midland Credit Management, Inc., 250 SW 3d 481 (El Paso 2008); and

 

6)Jaramillo v.PortfolioAcquisitions,LLC,No. 14-08-00939-CV, (Houston[14thDist.] 2010).

 

 

 

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http://www.txcba.org..._Records.v2.pdf

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