NormInGeorgia Posted April 7, 2013 Report Share Posted April 7, 2013 Midlands/Hanna sued me in 2012 in Magistrate court for a Chase credit card account. I answered the claims but made no counter claims. When I went to the Magistrate court date , I told the Hanna attorney that his affidavit, bill of sale, and copies of card statements were not enough for him to win. He then quickly dismissed WITHOUT prejudice. I did not know at the time I should have forced him to trial instead of agreeing to the dismissal WITHOUT prejudice. So I was very happy with my "win" until.... They filed the suit again in State Court with the exact same evidence. I read these forums, sent my counterclaims, did the back and forth discovery phase, and basically did everything right. I had a rock solid case to object to each and every bit of "evidence" with solid Georgia case law for each item. By the way, my WIFE had an almost identical case to mine in October 2012 for a Chase card. In that one Midlands/Hanna agreed to dismiss with prejudice before the trial once they realized we had all our ducks in a row and were going to shoot down all their hearsay evidence. So MY case went to trial the first week of April 2013 and I thought Midlands/Hanna would roll over again and dismiss with prejudice since this case was no different from the October 2012 case my wife had won. Well, surprise surprise, it turns out there has been a change in the laws of Georgia effective January 1st 2013! Georgia has adopted Federal Evidence Rules apparently. The lawyer refused to dismiss and we went to trial. I immediately objected as soon as the lawyer introduced his first piece of evidence, the affidavit from the Midland/MCM "legal specialist" that claims she is familiar with the records transferred to Midlands by Chase Bank and that I owe the debt to Midlands and that all their "attached documents" are correct. So I stood up and made all the objections about how this person did not claim to have any personal knowledge of or any written proof of the claim that Chase wrote off or sold my specific account to Midlands. I also pointed out that the affiant failed to describe what the "attached documents" supposedly were in her affidavit. To my surprise, the judge quickly overruled my objection and said the affidavit was acceptable and that the ENTIRE "PACKET" of plaintiff's documents (Chase/Midlands bill of sale for a "pool" of unidentified written off debts, Chase's bogus affidavit regarding the bill of sale, old card statements) could now be admitted into evidence and were magically considered to be the "attached documents" referred to in the affidavit just because the attorney said so. The lawyer and the judge said they were using the "new" rules of evidence in Georgia effective January 1 2013. So after I LOST the case, when I got home I looked up these "new" rules. The following excerpts are from the Georgia State University Law Review's overview of the new evidence code in Georgia for 2013 and I think these are the specific changes used by the lawyer and judge to find against me. Specific Directions for Making Evidence Rulings— New sections 24-1-104(a) and ( b ) clarify the roles of the judge andthe jury in preliminary questions of fact. Currently, Georgia juries areinstructed to determine whether evidence is admissible under a hostof situations. The new rules assign these decisions, with fewexceptions, solely to the trial judge. The judge may consider anynon-privileged evidence in making these preliminary determinationsand the court uses a preponderance of the evidence standard in considering whether the preliminary facts have been proven. Forexample, before admitting a document under the business recordexception, the judge must determine whether the record was made inthe ordinary course of business. The judge may consider any nonprivilegedevidence, including hearsay, in making this determinationand decide whether the proponent has shown, by a preponderance ofthe evidence that the record was made in the ordinary course ofbusiness. Business Record Exception Foundation by Affidavit— Current Georgia law requires a “qualified witness” to appear at trial and laythe requisite foundation for a business record. The new rules offeran additional option. A party can acquire a certification from thecustodian or other person qualified to lay foundation for the recordunder the business record exception. The party must give allopposing parties advanced written notice of its intent to use thecertification in lieu of live testimony and make the record availablefor inspection prior to trial. Extrinsic evidence of authenticity as a condition precedent to admissibility shall not be requiredwith respect to the following: . . .The original or a duplicate of a domestic record of regularly conducted activity that wouldbe admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a writtendeclaration of its custodian or other qualified person certifying that the record:(A ) Was made at or near the time of the occurrence of the matters set forth by, or frominformation transmitted by, a person with knowledge of such matters;( b ) Was kept in the course of the regularly conducted activity; and( c ) Was made by the regularly conducted activity as a regular practice.A party intending to offer a record into evidence under this paragraph shall provide writtennotice of such intention to all adverse parties and shall make the record and declaration availablefor inspection sufficiently in advance of their offer into evidence to provide an adverse partywith a fair opportunity to challenge such record and declaration. Business Record Exception—”Integrated Records Rule”— Georgia courts have struggled under the current business recordstatute with the problem of one business laying foundation forrecords received from a different business. The cases are inconsistentand have permitted, in some cases, a witness to “lay foundation” for abusiness record without any evidence that the witness has a clue as tohow the record was produced.The new business record exception is based on the Federal Ruleand takes advantage of the “integrated records rule” as developed byfederal courts to address this problem. The basic requirements for theintegrated records rule are (1) a business relationship between thebusiness that initially made the record and the one who received it,(2) the recipient business routinely relies upon the accuracy of therecord and integrates it into its own files, (3) the recipient businesshas a witness who is sufficiently familiar with how the originatingbusiness routinely prepared the record to establish that the record wasmade and kept in the ordinary course of business at or near the timeof the events described in the record, and (4) circumstances supportthe trustworthiness of the record. I feel like I need to appeal this judgement because something just does not seem right about every single piece of evidence being admitted into the case and accepted by the judge as proof that Chase assigned the debt to Midlands based SOLELY on an affidavit that does not describe the underlying records that supossedly prove the accusations in the affidavit. After the judge said the affidavit was good, it was clear he had already decided in favor Midlands/Hanna and magically the bogus "pool" of accounts in the bill of sale and the invisible "electronic records" given to Midland by Chase OBVIOUSLY included my account just because the Midlands "legal specialist" says so. I am posting my story to see if anyone else has been completely destroyed like this by the use (or misuse) of "federal evidence rules", or am I alone in this dubious honor? Did I get shafted by a judge that is misapplying the law? Will this lead to a flood of re-filed cases taking advantage of the new laws in Georgia? Based on what I have read about the new laws, there are 44 states that already use these same rules. How could ANYONE on these forums be winning their cases if 44 states use these same rules? I have not been able to find references to "integrated records" or "business records foundation by affidavit" , or "preponderance of evidence" in the forum or how to defeat it. I have attached two affidavits and a bill of sale used by the plaintiff. two affidavits and a bill of sale.pdf Quote Link to comment Share on other sites More sharing options...
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