I got destroyed by the new Georgia evidence rules, did anyone else?

[NormInGeorgia]

 

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 and

the jury in preliminary questions of fact. Currently, Georgia juries are

instructed to determine whether evidence is admissible under a host

of situations. The new rules assign these decisions, with few

exceptions, solely to the trial judge. The judge may consider any

non-privileged evidence in making these preliminary determinations

and the court uses a preponderance of the evidence standard in 

considering whether the preliminary facts have been proven. For

example, before admitting a document under the business record

exception, the judge must determine whether the record was made in

the ordinary course of business. The judge may consider any nonprivileged

evidence, including hearsay, in making this determination

and decide whether the proponent has shown, by a preponderance of

the evidence that the record was made in the ordinary course of

business.

 

 

Business Record Exception Foundation by Affidavit—

 

Current Georgia law requires a “qualified witness” to appear at trial and lay

the requisite foundation for a business record. The new rules offer

an additional option. A party can acquire a certification from the

custodian or other person qualified to lay foundation for the record

under the business record exception. The party must give all

opposing parties advanced written notice of its intent to use the

certification in lieu of live testimony and make the record available

for inspection prior to trial.

 

Extrinsic evidence of authenticity as a condition precedent to admissibility shall not be required

with respect to the following: . . .

The original or a duplicate of a domestic record of regularly conducted activity that would

be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written

declaration 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 from

information 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 written

notice of such intention to all adverse parties and shall 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 such record and declaration.

 

 

Business Record Exception—”Integrated Records Rule”—

 

Georgia courts have struggled under the current business record

statute with the problem of one business laying foundation for

records received from a different business. The cases are inconsistent

and have permitted, in some cases, a witness to “lay foundation” for a

business record without any evidence that the witness has a clue as to

how the record was produced.

The new business record exception is based on the Federal Rule

and takes advantage of the “integrated records rule” as developed by

federal courts to address this problem. The basic requirements for the

integrated records rule are (1) a business relationship between the

business that initially made the record and the one who received it,

(2) the recipient business routinely relies upon the accuracy of the

record and integrates it into its own files, (3) the recipient business

has a witness who is sufficiently familiar with how the originating

business routinely prepared the record to establish that the record was

made and kept in the ordinary course of business at or near the time

of the events described in the record, and (4) circumstances support

the 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

[DonqIII]

 

 

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 with prejudice.  I did not know at the time I should have forced him to trial instead of agreeing to the dismissal with 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.  

There is something really wrong here, or you posted something incorrectly.

 

The original suit in 2012 was dismissed "WITH" prejudice?

 

If this is an accurate statement, they had no right to re-sue.

 

Dismissed WITH prejusdice makes it a dead deal.....

 

If that is the case, and you need to review your paperwork from that dismissal, you have  solid

grounds for an appeal and possibly more.

 

 

 

[Learnin]

Appeal!

 

I could certainly be wrong, but it is my understanding that if an affidavit doesn't meet the definition of an affidavit, then a judge can't rule that it is one.

[NormInGeorgia]

 

There is something really wrong here, or you posted something incorrectly.

 

The original suit in 2012 was dismissed "WITH" prejudice?

 

If this is an accurate statement, they had no right to re-sue.

 

Dismissed WITH prejusdice makes it a dead deal.....

 

If that is the case, and you need to review your paperwork from that dismissal, you have  solid

grounds for an appeal and possibly more.

 

 

 

 

DonqIII,  Thanks for pointing out my typing error.  I have edited my original post.  

[TomnTex]

What are the 44 states that follow this line of thinking? You will need NASCAR or TNCONSUMER Lawyer to advise you on this.

[racecar]

January 1, 2013, Georgia’s rules of evidence

 

https://docs.google.com/viewer?a=v&q=cache:ILCQg5IMiUgJ:www.ga-lawyers.pro/Other-Articles/Changes-in-Georgia-s-Evidence-Code-Effective-January-1-2013.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESj9-Wx35J2dgvGcowFSwOe7SM6U88qkNeJ3SxjemY_mW4kEOA-hy8m_TgDiMlfanf0ZttrygUSWYWZX2_U8VCZi_4Dl0sftDBMCTtLekGZX9ClH3ESf7j7kD_za51h_T54MBndA&sig=AHIEtbSCZ0BlobRgubJOuPE5Ytw7_O37pg

[BV80]

What was written in the Chase affidavit?

[debtzapper]

If you are going to appeal, I would suggest you seek out the best consumer law firm in GA, and one of the best in the country.

www.skaarandfeagle.com

[Seadragon]

this seems fishy and the judge just okeey doked you. The new rules were not valid in your case because it was commenced before the statute change. The plaintiff prejudiced you with this crap and the judge cannot change the law of the case.

 

I would appeal on the grounds of surprise at trial and that you preserved the objections for appeal. this is an error because the new rule is not allowed in cases that were filed under the old evidence standard. It is error to apply law that changes the law of the case. A very crappy turn of events. 

[NormInGeorgia]

What was written in the Chase affidavit?

The Chase affidavit is dated April 30 2012 from someone named Martin Lavergne claiming he is an officer of JPMorgan Chase Bank and that he is aware of the process of the sale and assignment of electronically stored business records, and that a pool of charged-off accounts was sold to Midland Funding on or about 6/24/11.    But what is funny about this one is that the Hanna attorney completely FORGOT to mention it in his oral presentation.  He forgot it was even in the "packet" of evidence.  The affidavit that the judge focused on was the one from the Midland "legal specialist" dated March 20 2013 which was the first piece of evidence submitted and was the floodgate that allowed everything else into evidence.

[Clydesmom]

Hanna is a bottom feeder and lies ALL the time.  The GA Attorney General even went after his firm.  He has gotten in SO much trouble in GA that he has moved a lot of his operations to St. Louis and south Florida.  Hire a lawyer to do the appeal.  You got away with it the first time so he was prepared for you the second go around. If you don't fight fire with fire on this one he is going to drain your bank account(s) and garnish your wages.  You have a small amount of time to file the appeal so do not delay.

[NormInGeorgia]

this seems fishy and the judge just okeey doked you. The new rules were not valid in your case because it was commenced before the statute change. The plaintiff prejudiced you with this crap and the judge cannot change the law of the case.

 

I would appeal on the grounds of surprise at trial and that you preserved the objections for appeal. this is an error because the new rule is not allowed in cases that were filed under the old evidence standard. It is error to apply law that changes the law of the case. A very crappy turn of events. 

 

Seadragon, 

 

 

Below was the sequence of filings.  Where can I find further info or case law to show that rules effective in 2013 do not apply to cases filed in 2012?

 

 

09/18/2012 - gen civil case filing info form - attorney for plaintiff

10/23/2012 - affidavit of service - private process server

11/16/2012 - certificate of service - defendant pro se

11/16/2012 - answer - defendant pro se

11/16/2012 - counterclaim - defendant pro se

12/17/2012 - certificate of service of discovry - attorney for plaintiff

01/11/2013 - stipulation - to extend time to answer discovery - attorney for plaintiff

02/20/2013 - response to request for admissions - defendant pro se

02/20/2013 - answers to interrogatories - defendant pro se

02/20/2013 - response to request for production - defendant pro se

02/20/2013 - request for admissions - defendant pro se

02/20/2013 - request for production - defendant pro se

02/20/2013 - interrogatories - defendant pro se

02/20/2013 - certificate of service of discovry - defendant pro se

03/22/2013 - certificate of service of discovry - attorney for plaintiff

03/22/2013 - certificate of service of discovry - attorney for plaintiff

04/04/2013 - judgment

[BrunoTheJDBkiller]

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.

 

This is where most people make a fatal mistake. They follow the "personal knowledge of the OC stuff" when the affidavit almost NEVER makes this claim. We've seen hundreds of them here, all templates, they all say the same thing, that the affiant (from Midland) has knowledge of Midland's records, which were transmitted to Midland by a person of knowledge from the OC. See how they make the chain complete without making any such claim as you stated above? Therefore, you cannot object to it on the grounds you stated. Incidentally, this satisfies the language in the federal statute, which quite a few states use or copy outright. To challenge this, you have to attack the records that were supposedly transmitted, find the person of knowledge who transmitted them, and drag his sorry butt into court and make him show just how much personal knowledge a robo signor really has.

[shellieh98]

How would he do that Bruno since the civil procedure says you can use an affidavit in leiu of live testimony? Or am I reading that wrong?

 

Business Record Exception Foundation by Affidavit—

 

Current Georgia law requires a “qualified witness” to appear at trial and lay

the requisite foundation for a business record. The new rules offer

an additional option. A party can acquire a certification from the

custodian or other person qualified to lay foundation for the record

under the business record exception. The party must give all

opposing parties advanced written notice of its intent to use the

certification in lieu of live testimony and make the record available

for inspection prior to trial.

 

So he would need to object before trial or subpoena the witness before trial?

[BrunoTheJDBkiller]

How would he do that Bruno since the civil procedure says you can use an affidavit in leiu of live testimony? Or am I reading that wrong?

 

 

No, you read it correctly. Affidavits are considered sworn testimony in lieu of a live witness. It is the job of the defendant to challenge the evidence and get the witness to court, which is his right.  It is not the plaintiff's job to do this. It's like Mariano Rivera serving up that 95 MPH fastball up and in. It's your decision, step back and take the strike, or try to hit it out of the park.

[NormInGeorgia]

How would he do that Bruno since the civil procedure says you can use an affidavit in leiu of live testimony? Or am I reading that wrong?

 

 

No, you read it correctly. Affidavits are considered sworn testimony in lieu of a live witness. It is the job of the defendant to challenge the evidence and get the witness to court, which is his right.  It is not the plaintiff's job to do this. It's like Mariano Rivera serving up that 95 MPH fastball up and in. It's your decision, step back and take the strike, or try to hit it out of the park.

 

So when I received the affidavit,  I would have had to send a second discovery request to Midlands/Hanna asking for the specific name and address of the unnamed "person with knowledge of the act or event recorded to make the record or data compilation"  and then subpoena that person as a witness at trial?

[shellieh98]

so would he motion to strike--on what grounds, or would he subpoena the witness? I guess I am wondering if it gets to court, is it to late to do anything about it, or what did he need to do before court.  If it got to court could he have objected to the records themselves? 

[BV80]

Personal knowledge isn't required to authenticate records.   Some courts have ruled that an affiant must have knowledge of the OC's record-keeping methods.  However, alot of courts don't require that much.  If your rule of evidence for business records is 803(6), read it.  It says nothing about personal knowledge.

 

The personal knowledge is required in an affidavit to support summary judgment.   It seems most JDBs offer one affidavit to serve both purposes.  It's offered to authenticate business records and support summary judgment.  If you want to attack the affiant's lack of personal knowledge, you don't do it in regard to the business records unless your courts have ruled that he/she must have a certain amount of knowledge about those records.  See what your courts have to say about one business attempting to authenticate or admit records created by another business.

 

Otherwise, you find case law about personal knowledge required to support a motion for summary judgment.  Look for precedent that would support your argument that a 3rd party or an assignee could not have the personal knowledge required to support the motion.  If the affidavit is insufficient to support the motion, you have an issue of material fact, and the judge won't grant an MSJ. 

[Seadragon]

The reliance on cases designed for paper records admissibility on an exception to the Hearsay rule is not the way the federal courts rule in credit card related cases. The Rule 803 is closely tied to other Code of Evidence rules for records admissibility. Rule 902 is typically now used as a means in conjunction with Rule 803 for evidence. The federal courts are using the procedure cited in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), Chief United States Magistrate Judge Grimm precisely lays out the requirements for federal courts electronic records foundation and admissibility requirements. These procedures include the Business records exception to the hearsay rule discussed id at pg.572.

“Because elements for both rules are essentially identical, they frequently are analyzed together when Rule 902(11) is the proffered means by which a party seek to admit a business record. See In Re Vee Vinhnee, 336 B.R. at 446; Rambus, 348 F. Supp. 2d at 701 (holding that analysis of Rule 803(6) and 902(11) go “hand in hand,” and identifying the following requirements for authentication under Rule 902(11): (1) a qualified custodian or other person having personal knowledge makes the authenticating declaration, who must have “sufficient knowledge of the record-keeping system and the creation of the contested record to establish their trustworthiness;” (2) the declaration must establish that the record was made at or near the time of the occurrence or matters set forth in the document by someone with personal knowledge of these matters or from information provided by someone with personal knowledge thereof; (3) the declaration must show that the record is kept in the course of the regularly conducted activity of the business, and the “mere presence of a document . . . in the retained file of a business entity do[es] not by itself qualify as a record of a regularly conducted activity”; and (4) the declaration must establish that it is the regular practice of the business to keep records of a regularly conducted activity of the business, and “it is not enough if it is the regular practice of an employee to maintain the record of the regularly conducted activity . . . . it must be the regular practice of the business entity to do so”— i.e. it is at the direction of the company that the employee maintain the record).” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 572 (D. Md. 2007)

 

This opinion is widely cited in relation to electronic records and data throughout the federal system and lends itself well the state court rules based on the federal rules such as the State of Arizona. Since the court allows the citing of federal authorities a key opinion by a well respected Magistrate should be allowed to show that baseless affidavits are indeed hearsay and should properly be excluded.

b. The affiant has shown a lack of specific knowledge of the alleged assignors computer storage and data management practices

 

The affiant here neither purports to being involved with the making of the records nor lays out any relevant testimony concerning the particulars of the records creation, maintenance, security, nor the trustworthiness or reliability of purported records. The affiant does not disclose any working nor affiliatory relationship with the alleged assignors in this case.

The plaintiffs affiant did not show any averments beyond conclusory ipse dixits to support alleged documents submitted to the court; in the Motion to Strike and after the court granted that motion, in plaintiffs facially void Motion for Summary Judgment. The non specific recitation of generalized statements due not rise to the level necessary for authentication of anything relevant to the case.

“[A]ffidavits shall be made on personal knowledge,shall set forth such facts as would be admissible in evidence, and shall show affirmatively the affiant is competent to testify

to the matters stated therein.” Ariz. R. Civ. P. 56(e). On summary judgment, to demonstrate an affidavit was made from personal knowledge, the affiant must review the documents, show

that he is familiar with the person who prepared them, or the manner in which they were prepared. Villas at Hidden Lakes Condo. a$$’n v. Geupel Constr. Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App. 1992) (finding that an association failed to establish a prima facie case entitling it to summary judgment because its supporting affidavit did not provide foundation for the affiant’s personal knowledge and conclusion, nor did it demonstrate his familiarity with the person who prepared the affidavit exhibits or the manner in which they were prepared).

 

1. The Federal Rules and authorities on submission of evidence.

The affidavits in this case do not rise to the levels necessary under the most relevant court to hear credit card related issues the 9^th circuit Bankruptcy Appellate Panel in the case styled as In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005). This case concerned the evidentiary hurdles of a national bank associated with purported business records. The bankruptcy court excluded bank records because they could not supply the necessary foundation or authentication for evidence in the case. The process the court

used was based on a well-respected book on evidentiary foundations. Edward J. Imwinkelried, Evidentiary Foundations § 4.03[2] (5th ed. 2002). The Court stated the following:

“Indeed, judicial notice is commonly taken of the validity of the theory underlying computers and of their general reliability. IMWINKELRIED § 4.03[2]; RUSSELL § 901.9. Theory and general reliability, however, represent only part of the foundation.

Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records:

1. The business uses a computer.

2. The computer is reliable.

3. The business has developed a procedure for inserting data into the computer.

4. The procedure has built-in safeguards to ensure accuracy and identify errors.

5. The business keeps the computer in a good state of repair.

6. The witness had the computer readout certain data.

7. The witness used the proper procedures to obtain the readout.

8. The computer was in working order at the time the witness obtained the readout.

9. The witness recognizes the exhibit as the readout.

10. The witness explains how he or she recognizes the readout.

11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

IMWINKELRIED § 4.03[2].

Although this is a generally serviceable modern foundation, the fourth step warrants amplification, as it is more complex than first appears. The "built-in safeguards to ensure accuracy and identify errors" in the fourth step subsume details regarding computer policy and system control procedures, including control of access to the database, control of access to the program, recording and logging of changes, backup practices, and audit procedures to assure the continuing integrity of the records.”In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) at 336 B.R. 446,447

 

As can be seen the the purported affidavits at issue in defendants’ Motion to Strike,the affiants do not even supply the level of foundation and authentication necessary in the Bankruptcy Courts. The Arizona Rules of Evidence and Civil procedure mirror the Federal Rules therefore it can be seen that Midland has failed like American Express to properly found and authenticate their claims.

The Vinhhee court further found at 336 B.R. 448 the generalized statements of the secondary witness allowed to testify after the court excluded the primary witnesses declaration and evidence:

“Here, the declarant merely asserted that he is employed by American Express and is personally familiar with the hardware and software and computer record-keeping systems in use in the credit card industry. He did not indicate his job title or anything about his training and experience that would import an aura of verisimilitude to his assertions. The trial court ruled that this was not adequate qualification of the witness because the "declaration contains no information at all about [declarant's] background and training or whether and to what extent he is knowledgeable about the American Express computers, or how he obtained such information." Since it is apparent that the trial court did not know whether the declarant was a seasoned professional manager of computer records or a janitor, we perceive no error in this ruling and do not have a definite and firm conviction that there was a clear error of judgment in rejecting the declaration on this ground.” id at 448.

 

These authorities expand upon the federal rules in a way that makes the process fair and beyond reproach. Plaintiffs witnesses suffer from similar lack of the required knowledge to authenticate and provide foundation for Midlands allegations. Affiants in credit card related actions within this state must give relevant testimony and in this case it is lacking.

A very on point analyses often cited for this very case is Cooper Offenbecher‘s, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future? the analysis of the writer strikes right to the heart of the problem in this case. The foundation of electronic data has changed since the cases cited by plaintiffs were written. As cited here:

“The Vinhnee court seemed most concerned with the witness’ knowledge of specifics regarding accuracy, security, and the potential for data error or loss. “There is no information regarding American Express’ computer policy and system control procedures, including control of access to pertinent databases, control of access to pertinent programs, recording and logging of changes to the data, backup practices, and audit procedures utilized to assure the continuing integrity of the records.”68 In doing so, the court highlights step four and step five (to the extent that it deals with the internal processes of the computer) as two of the most important foundation steps.” Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?, 4 Shidler J. L. Com. & Tech. 6 (Oct. 17, 2007), at <http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/407/vol4_no2_art6.pdf?sequence=1> at ¶20

 

The court was proper in granting the Motion to Strike and should not disturb its well founded ruling based on conclusory averments. The Motion to Reconsider must be denied because the plaintiffs supply no foundation or authentication for the stricken evidence. There is no merit for reconsideration because the court has already conducted the necessary deliberations to rule correctly for the Motion to Strike. Plaintiff’s supply no nonconclusory testimony to support reconsideration.

As the numerous authorities have changed the way electronic evidence is admitted in modern courts, so goes the old ways of debt litigation. The use of hearsay evidence, lacking proper standing proofs, and using summary proceedings on unrepresented parties is not being allowed in courts country-wide. In this court, at this time, defendants move for denial of the Motion to Reconsider. The resulting prejudice would necessitate that defendants seek further remedies to protect their rights in the litigation.

c. The records are purported to be from Washington Mutual Bank hostly taken over by the FDIC and sold with a large break in the chain of records custody and large scale spoilation of Bank records, rendering Chase Bank unable to lay foundation to support the alleged records in any way

 

Because of the widely reported takeover of the alleged account originator, the averments of any person not an employee of Washington Mutual Bank is wholly inadmissible. The court can take judicial notice of the fact: On September 25, 2008 the FDIC forced the Washington Mutual Bank hereafter WAMU into receivership. Chase bank was purported to have shifted all computer records into differing computer systems. Because Chase employees could not supply necessary authentication for business records of WAMU, any alleged assignees would lack the foundational and authenticitory knowledge to tender testimony of WAMU records.

The affiants in the present case suffer from these very problems that occasioned the Motion to Strike. The attempt for plaintiffs to after the fact, try to render their Motion for Summary Judgment valid and not void, belies the underlying truth that no affiant of Midland Funding LLC. Can supply relevant testimony concerning any alleged WAMU accounts, nor Chase accounts. The reason the court granted the Motion to Strike is valid. Plaintiffs have not shown any renewed reason to grant their Motion.

A recent case in the Supreme Court of Missouri en banc further showed the generalized methods used to collect debts under arguably similar circumstances. This case is CACH LLC. v. Askew, 358 S.W.3d 58(2012). In Cach LLC., the Missouri Supreme Court found the following:

“All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence. State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records "custodian" or "other qualified witness" has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. 1989) ("The business records exception to the hearsay rule applies only to documents generated by the business itself.... Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140.” id at pg. 63

 

The Missouri Revised Statutes §490.680 is in accord with Rule 803 and so the Cach LLC case bears a reoccurring lesson to courts, plaintiffs and to defendants’ that modern courts are evolving with the times and setting new standards for evidence. As shown below the statute is unambiguous:

490.680. A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

 

So since you have been ambushed by this there will be a new trial based on the old way but you must trash the case using authorities to address this new evidence rule. Because it is based on paper records and not electronic records.

 

The CACH LLC is highly relevant to the to the present case, because plaintiffs in this case are attempting to collect an alleged debt based on hearsay documents that were stricken already.

These arguments may help:

[BrunoTheJDBkiller]

So when I received the affidavit,  I would have had to send a second discovery request to Midlands/Hanna asking for the specific name and address of the unnamed "person with knowledge of the act or event recorded to make the record or data compilation"  and then subpoena that person as a witness at trial?

 

 

Exactly. Then they will either object or say something stupid, which means you can then get the thing thrown out. The only drawback is that if they bluff you, then you have to pay to get the witness to court, which can be expensive. Some states allow a deposition by written question, similar to sending rogs, look into this. It's a lot cheaper.

[debtzapper]

GA case law for business records and MSJ:

 

 

http://scholar.google.no/scholar_case?case=3799997564536274980&q=business+records&hl=en&as_sdt=4,11&as_ylo=2012

[BV80]

GA case law for business records and MSJ:

 

 

http://scholar.google.no/scholar_case?case=3799997564536274980&q=business+records&hl=en&as_sdt=4,11&as_ylo=2012

 

That's a good case.  Here's a relavant portion:

 

Hearsay, opinions, and conclusions in affidavits are inadmissible on summary judgment. And while a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge, if it appears that any portion of the affidavit was not made upon the affiant's personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.

[NormInGeorgia]

Exactly. Then they will either object or say something stupid, which means you can then get the thing thrown out. The only drawback is that if they bluff you, then you have to pay to get the witness to court, which can be expensive. Some states allow a deposition by written question, similar to sending rogs, look into this. It's a lot cheaper.

If I did not make all these specific objections before trial or at trial, then I presume I have no hope on appeal?   My understanding is if I appeal to the Georgia Court of Appeals all they do is review the transcript of the trial.   If I did not make the objection at trial or try to find the unnamed "person with knowledge of the act or event recorded to make the record or data compilation", then it's too late, correct?.

 

Back to the question raised by Seadragon,  can the courts apply new 2013 evidence rules to a case initiated in 2012?

[ArtVandelay]

You might want to check with Tennesseeconsumerlawyer. I think I remember him saying he practices in GA.

 

http://www.creditinfocenter.com/community/user/99321-tnconsumerlawyer/

[between the eyes]

This is very similar to the Texas rules for business records exceptions. The affidavit can be admitted unless there is reason to believe the business records are untrustworthy.