Az Piano Lady 14

Thank You All!!---A Midland Win

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Harry,

 

Based on those results the game is so fixed in AZ for the JDB, fighting in the court system is really futile.  Meaning to win the Plaintiff has to make a gross error, and the Pro Se has to be perfect or near perfect.

 

When you see these type of results, it is not about finding some niche in the civil procedure to expose, it is remove yourself from the court system. 

 

If this was a business problem and this set of facts were presented everyone would agree in order to beat the competition, you would need to reset the playing field. Force the game to a place where the competitions business model, could become strained.

 

Thus folks from AZ, might need to seriously re-think the Arbitration Strategy.  Clearly, if you go to full hearing in arbitration you will loose, but then again for the most part you are loosing in court.  But in order to get the judgment in Arbitration the other side will need to expend big money to do so. 

 

Insanity is doing the same thing over and over and expecting different results.  Those results show just that, time for the AZ posters consider something new.  Minimally it should be investigated in a review of our laws and case law.

 

Thanks for taking the time to look at the number of cases and results, I am sure this took some time and reading....

@skippy1960

I wanted to mention that my data doesn't look at all of the JDB cases filed in Justice Court.  I'm absolutely certain there are many cases that get dismissed by the JDB or are eventually ruled in the defendant's favor.  It would then be up to the JDB to pursue an appeal, and I didn't see a single case where the JDB appealed a ruling in the defendant's favor.  There are a few ways this can be interpreted.  My personal feeling is that since all Justice Court cases are >$10,000 (most are less than $5,000) and knowing the appellate court is unlikely to reverse evidence-based decisions, the JDB isn't interested in hassling with an appeal on a likely loss for a relatively small amount of money.

 

My point with all of that is to say that there are plenty of people that win their cases in Justice Court.  But just as one could use the excuse that the Justice Court judges rule in the plaintiff's favor on evidence because they aren't educated in law, etc, you can use the same excuse for why they rule in the defendant's favor.  In fact, the commissioner hearing debt collection appeals is fairly well educated with quite a bit of legal work history, so the lack of education argument is removed from the equation by looking at only cases that made it to an appeal.  Either way, it's crystal clear that a strategy that works with one Justice Court judge cannot necessarily be repeated in another Justice Court.  If you end up on appeal, the appellate court will be looking at whether or not the plaintiff's witness properly qualified the evidence using the formula I described a couple posts back.  If the required elements are present in the witness/affiant testimony, the plaintiff will prevail.  It's that simple.

 

 

Arbitration may be the answer, but I have personal experience with that as well, although it was with an OC.  In my case, the OC followed me right into arbitration and saw it right to the end.  I flaked out and didn't go the final hearing, but I had nothing and knew I would probably lose anyway.  At the conclusion, the arbitrator ruled "costs as borne" and the plaintiff LOST IT.  They wrote a scathing demand for reconsideration and it was clear they had no idea they would end up stuck with their own costs.  I'm sure this is why they followed me into arbitration in the first place, so the lesson is, make sure the other side knows their costs.  (The arbitrator did not back down on his fee ruling, so the OC paid essentially 1/3 the cost of the debt in arbitration fees.)

 

The other issue associated with arbitration is that many of the agreements now say the losing party pays the prevailing party's fees and the arbitration rules support rulings to this effect.  Meaning that even though the JDB has to lay out the majority of fees up front, the arbitrator's award can stick the defendant with the JDB's fees.

 

 

I think @ArtVandelay has had it right all along.  The only repeatably successful strategy to deter JDBs is to file FDCPA counterclaims against them and possibly their lawyers in Federal Court.  This circumvents the capped fee agreements between the lawyers and JDBs because they have to hire lawyers that know how real court works which costs real money.

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Also, the difference it makes as to whether or not an affidavit is evidence, is that if you are going to accept it as evidence; then you are going to allow them to use the rules of evidence and apply them to the affidavits they create. They are going to automatically be treated as a business record. Of course you would lose your case in this situation. How could you possibly win?

 

The affidavits are critical to these cases . It amazes me that you can actually ask "what difference does it make if an affidavit is evidence or not" when talking about a trial, but it does not surprise me that you lost yours (although I'm sorry to hear it, and not saying you did anything wrong).

 

An affidavit created for the purpose of authenticating records is not, itself, going to be considered and accepted as a business record.  For a business records affidavit to be offered as a business record, there would have to be another affidavit or live testimony stating that the business records affidavit was made in the regular course of business, etc.  

Harry objected to and provided both arguments and case law against the JDB affidavit.

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If this is true I will lose my second appeal, as the telephonic witness got the other affadavit admitted.  However, that witness as well , as the affiant are from MCM, not Midland Funding, and the atty said this was a WAMU case. So how can a TW from MCM verify the OC's records, and that of a previous OC???

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Update to my research.  I found an error in my original posted data.  I had said that the appellate court upheld a finding for the plaintiff where the plaintiff relied only on an affidavit and produced no witness at trial.  Was just now reading through the case again and I realized there was actually a witness at the trial and the witness was authenticating the affidavit.

 

Which then made me think of another case I read through where the appellate court seemed pretty clear that the testimony of a witness should come from a live, in person witness unless there was a good reason this should not happen.  I read through that case again and found that she cited some rules of procedure and caselaw in supporting her statements.

 

 

Because Defendants do not have a guaranteed right to cross-examine witnesses in civil cases, this Court must balance the use of an affidavit to support a business record against the requirement for testimony listed in the proffered case law. This Court notes testimony is normally taken in open court.

 

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules or the Arizona Rules of Evidence.

 

Ariz. R. Civ. P. 43(f) (emphasis added). Accord, JCRCP, Rule 137(a) stating:


. . . A witness is a person, including a party, who provides sworn testimony during a lawsuit. . . .The testimony of a witness at trial must be presented in person or by deposition unless the parties agree otherwise or as the judge allows for a good reason.

 

Here, Plaintiff failed to provide any witness to testify about the reliability of its proffered records. Console, Adefehinti, and Parker all reference the testimony of a witness and do not stand for the proposition that a party can simply claim — by affidavit — that records of a third entity have been adopted. Although the proffered affidavits and supporting documentation might have been admissible if there was testimony to establish the reliability of the proffered documents, Plaintiff failed to produce such testimony. Because the Plaintiff failed to proffer any testimony about these documents, the trial court abused its discretion by admitting the documents.

 

So this seems to contradict the notion that an MSJ can be granted solely on testimony via affidavit.  (Why would the rules be more lax for an MSJ than trial?)  I don't know how to reconcile this seeming paradox.

 

@Anon Amos I know this was a point you made earlier and I did not realize there were AZ court rules to back up your position.  I apologize for dismissing this argument that you made.  it doesn't negate the fact that the court can allow non-in-person testimony for "a good reason", but it seems there is some further discussion to be had on this particular subject.

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If this is true I will lose my second appeal, as the telephonic witness got the other affadavit admitted.  However, that witness as well , as the affiant are from MCM, not Midland Funding, and the atty said this was a WAMU case. So how can a TW from MCM verify the OC's records, and that of a previous OC???

Because the witness is a custodian of records for Midland, can describe the records and can testify that Midland incorporated the records into their own and relied on them in their day to day operations.

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@Harry Seaward

 

So this seems to contradict the notion that an MSJ can be granted solely on testimony via affidavit.  (Why would the rules be more lax for an MSJ than trial?)  I don't know how to reconcile this seeming paradox.

 

 

It's because a summary judgment hearing is to determine if a trial is needed.    You didn't post what was stated in the affidavit in the case you read.

 

Could you post the link to the ruling?

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@Harry Seaward

 

  The question I keep asking and don't get an answer to is this: what do you do when the plaintiff shows up with a pile of statements, a bill of sale and a credit card agreement that is all properly authenticated in accordance with the rules of evidence and caselaw via affidavit or live witness who testifies that he/she is a custodian of the plaintiff's records and the plaintiff incorporated the records into their own and relied on them in their day to day operations?

 

 

 

This might be where a strategy needs to be worked on to find out when the plaintiff received the business records.   If records can be "adopted" because a business incorporates them into its own records and relies upon them, the business has to have those records in order to do so.  

 

If a business does not request those records until it files suit or until requested in discovery, how has that business relied upon the records?    It didn't have them before filing suit, so the records could not have been relied upon.

 

A defendant could request that a JDB provide the date(s) that specific records were obtained by the JDB.  Would the JDB be honest about it?  Who knows?  It may depend upon whether or not the attorney has figured out what the defendant is trying to do.  

 

Now, a give-away would be if, in response to a production of document request, the JDB responds by saying that the records have been requested from the OC.   If that happened, there would be no way a JDB could claim that they incorporated those records into their own and relied upon them.

 

If dates are not forthcoming or in order to ensure that dates provided are true,  it may require a subpoena duces tecum to the OC in order to find out when records were obtained by the JDB.

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@BV80

 

More to your point:  From what entity is the JDB receiving the records or documents from?  If they are receiving them from 3rd party data centers and NOT the OC, then this is a clear break in the chain of custody and trustworthiness.

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@Coffee_before_tea

 

I could agree with that, but the problem might be proving that the OC's records are being supplied by a 3rd party.   That would require a deposition with an OC representative.  If the records are supplied by a 3rd party, you'd then have to prove or cast doubt on their accuracy. 

 

If the entity is providing records directly to the OC for the OC's business, casting doubt on their accuracy could be a problem because the OC has definitely relied on those records. 

 

I think what you've suggested is a good idea, but it might just entail more details that the average Pro Se (myself included) could handle.  After I saw your post that referenced Convoke Systems, I did a little research and couldn't find anything as far as case law that included that entity.  

 

Also, if there's no court ruling about such an entity, I'm wondering if it would help us.  I would think that if it made a big a difference, experienced and dedicated consumer attorneys would be relying upon that information.

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Yeah, sorry, guys, but trying to talk to @Seadragon and @Anon Amos is like an episode of Twilight Zone.

 

I'll re-state a couple of points one last time, post my research findings and then I'm done trying to argue reality with people that want to stay living in fantasy.

 

 

 

Not a problem. I won't respond to anymore of your post. If someone wants my opinion on something  they can PM me. Some people will win and some will lose.

 

However, for others, who don't "already know what you know" and do stand a chance of getting themselves past an MSJ, as many others before them have, I will make 1 more response to an earlier request of yours: "take a look at rule 902.11".

 

I did, and I'm paraphrasing and speaking from memory for those who must heavily scrutinize all post, (and I am assuming any one interested will do their own research). Your version of 902.11 allows affidavit, but states it has to comply with 803 - 6 which  also allows for affidavit, so that's pretty rough, BUT it states UNLESS A CHALLENGE TO FOUNDATION is made or issue of UNTRUSTWORTHINESS are brought up.

I know you guys think the bottom feeders are a professional trustworthy, public traded and fortune 500 business etc. so you will be quick to dismiss TRUSTWORTHY but I have always said to challenge the lack of FOUNDATION.

Other people will be able to spot untrustworthiness in document from bottom feeders and can also learn to challenge foundation. IF the court disagrees and says you have no right to trial, or you have no right to cross examine any witness, or they don't need a witness or any one to lay a foundation and that you will lose to hearsay testimony and that id OK, or you have no rights at all, or anything else equally as ridiculous at that; then THAT IS WHEN you use the Constitution to challenge whatever rule they are using to deprive you of your right to due process (14th amendment). 

 

And this is assuming that you can't find any way possible to get the affidavit stricken by the requirements of 803 - 6.

 

Good luck to everyone & Happy New Year.

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I am saying and will never dispute that CA and AZ have different ways that the law is interpreted. This said I want to go back on my own thread  how Az  defendants have a chance to get past MSJ.     Let's get back to the point of getting to trial.  I am the Op, and I am only interested in helping the AZ people win .  I am saying that most states are different in how the law is interpreted.

 

This discussion is valuable for the purpose of helping others.   It is to help people decide if they can represent themselves,

 

NOT to decide for them , whether they will win or lose??     That is for each person being sued to decide

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I hope that the Parker case is distinguished quickly. It was used to close a loophole for criminal defendants opposing evidence that convicted them. Maybe it can be distinguished by civil procedure. I think the Parker case is just a grasping at straw to continue the MSJ express.

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For anyone that wants to read the commisioner"s decision on my appeal.  It is in my thread My Two Year Case with Midland. It is on page 11  Post 192  001.   She mentions Parker on page 9.  A good read for anyone being sued in JC, because more than likely if we can't figure a way for you to get past the MSJ  you will likely appeal.

 

Also the atty for Midland told the court he could not get the witness Mycah Struck to court until March. Is he the only one they have to fly around??/   And he has been beat in court even when he showed up. I think in the disclosure you must list the affiant on YOUR witness list.  I did and argued in my MOSJ that I needed to get to trial to question the witness we BOTH listed.

 

Just a thought

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@Harry Seaward

 

 

It's because a summary judgment hearing is to determine if a trial is needed.    You didn't post what was stated in the affidavit in the case you read.

 

Could you post the link to the ruling?

I wasn't ignoring your request.  It was actually Hot in AZ's case and I didn't want to post the direct link for privacy reasons and then thanks to her last post here, I realized she posted a redacted version in her thread.  So here it is.

 

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=2745

 

The part I quoted came from the bottom of page 12 but the section discussing the evidence started on page 9.

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Update to my research.  I found an error in my original posted data.  I had said that the appellate court upheld a finding for the plaintiff where the plaintiff relied only on an affidavit and produced no witness at trial.  Was just now reading through the case again and I realized there was actually a witness at the trial and the witness was authenticating the affidavit.

 

Which then made me think of another case I read through where the appellate court seemed pretty clear that the testimony of a witness should come from a live, in person witness unless there was a good reason this should not happen.  I read through that case again and found that she cited some rules of procedure and caselaw in supporting her statements.

 

 

So this seems to contradict the notion that an MSJ can be granted solely on testimony via affidavit.  (Why would the rules be more lax for an MSJ than trial?)  I don't know how to reconcile this seeming paradox.

 

 

 

@Harry Seaward

 

I believe I found your answer.  The ruling you quoted was exactly the same as the ruling in Midland Funding, LLC v. Howell.  The affidavit provided by Midland was from MCM, not Midland, and the affiant was an employee of MCM.   For that reason, the court needed a live witness.

 

Defendants also challenged the Walker Affdavit because Ms. Walker was not called to testify and Plaintiff failed to produce any testimony demonstrating Ms. Walker had the proper qualifications to serve as a foundational witness for the alleged credit card account.  Plaintiff presented no testimony establishing Midland Funding (1) incorporated the Chase records; or (2) relied on them in their day to day operations.  Furthermore, Ms. Walker did not state she was a Midland Funding employee.  Instead, Ms. Walker attested she (1) was employed by Midland Credit Management, Inc.--not Plaintiff--and (2) was trained in the manner and method by which Midland Credit Management maintained its business records.  Plaintiff did not demonstrate its proffered records fell within the business records exception to the hearsay rule because Plaintiff produced no evidence about this issue.

 

Midland provided no testimony via affidavit or live witness from a Midland representative.  If Midland had offered its own affidavit from its own employee, things might have turned out differently. 

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Midland provided no testimony via affidavit or live witness from a Midland representative.  If Midland had offered its own affidavit from its own employee, things might have turned out differently. 

Indeed it might have.  Could be be just a coincidence that both cases that were reversed in the defendant's favor were the only two that did not have a live witness testify at trial?

 

Even if it's not a coincidence, I cannot find a way to reliably get past an MSJ (remember, every one of the MSJ cases that were appealed were affirmed by the appellate court).  And then even if you manage to defeat an MSJ, if they bring a witness, you can bet that witness will regurgitate the magic phrase to secure the win.

 

I'm going to extend my research out to the 9-month post-Parker, pre-2014 window to see if there any cases with more clues there.

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I looked at the federal language of FRE 803(6)(e) and the advisory notes. It showed that if "the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness. The advisory went through the house and the senate where they made sure that if the burden shifted that a defendant would have to object based on lack of trustworthiness. FRE902(11) states they have to give reasonable notice before it can be considered self authenticating.

Where defendant in Parker was tripped up is the OC, the bank employee was a proper witness because they could fill the requirements of 803(a-d). In the debt collection context, JDB affidavits fail because they are not compliant with 803(a,b,c)but we do not show that the affiant did not make it near the times of the event, that the JDB had a business duty, and that the sources of information are trustworthy. They did not make it when the records were incorporated into their alleged business records, but specifically in response to litigation which is quite conclusory.

On summary judgment all inferences are SUPPOSED to be in favor of the non moving party, but the Justice courts are not doing that. Maybe showing the standard outlined in Wells Fargo v. Allen http://scholar.google.com/scholar_case?case=16306185451700995909&hl=en&as_sdt=6&as_vis=1&oi=scholarrcould be helpful to show the court the error. The reasonable inferences are resolved in the non-moving parties favor. Summary Judgment is a test to see if there is indeed a factual dispute.

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@Seadragon

 

 

I looked at the federal language of FRE 803(6)(e) and the advisory notes. It showed that if "the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness. The advisory went through the house and the senate where they made sure that if the burden shifted that a defendant would have to object based on lack of trustworthiness. FRE902(11) states they have to give reasonable notice before it can be considered self authenticating.

Where defendant in Parker was tripped up is the OC, the bank employee was a proper witness because they could fill the requirements of 803(a-d). In the debt collection context, JDB affidavits fail because they are not compliant with 803(a,b,c)but we do not show that the affiant did not make it near the times of the event, that the JDB had a business duty, and that the sources of information are trustworthy. They did not make it when the records were incorporated into their alleged business records, but specifically in response to litigation which is quite conclusory.

On summary judgment all inferences are SUPPOSED to be in favor of the non moving party, but the Justice courts are not doing that. Maybe showing the standard outlined in Wells Fargo v. Allen http://scholar.google.com/scholar_case?case=16306185451700995909&hl=en&as_sdt=6&as_vis=1&oi=scholarrcould be helpful to show the court the error. The reasonable inferences are resolved in the non-moving parties favor. Summary Judgment is a test to see if there is indeed a factual dispute.

 

 

What does the affiant not make near the times in the event?  The affidavit?  It doesn't have to be. 

 

From 803(6):

 

A record of an act, event, condition, opinion, or diagnosis

 

It's the business record that has to be made at or near the time of the transactions (event or act) on the record.

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Yes but they cannot show or attest to anything OC related, they are not a qualified witness. Additionally, the language on the bill of sale can be used to infer that the trustworthiness of the records is in doubt. That is supposed to make a triable issue of fact.

They would also have to make an affidavit when the records are put in the system, that would be at the time the event the records incorporation would happen, not years later. Or if they did not get the records until after the litigation started they could not use the incorporation into business records theory because you could show that they got the records in response to a document request from the defendants for discovery. Discovery is not a business record because it is prepared for litigation.

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@Seadragon

 

They would also have to make an affidavit when the records are put in the system, that would be at the time the event the records incorporation would happen, not years later.

 

 

 

What part of the rule says that? 

 

 

Or if they did not get the records until after the litigation started they could not use the incorporation into business records theory because you could show that they got the records in response to a document request from the defendants for discovery.

 

 

That's what I've been saying.  They can't incorporate records into their own if they didn't have those records before they sue.

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@Seadragon

 

 

 

What part of the rule says that? 

 

 

 

That's what I've been saying.  They can't incorporate records into their own if they didn't have those records before they sue.

 

 FRE803(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

( B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

© making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

 

 

From advisory notes of FRE803 http://www.law.cornell.edu/rules/fre/rule_803

On the subject of what witnesses must be called, the Commonwealth Fund Act eliminated the common law requirement of calling or accounting for all participants by failing to mention it. United States v. Mortimer, 118 F.2d 266 (2d Cir. 1941); La Porte v. United States, 300 F.2d 878 (9th Cir. 1962); McCormick §290, p. 608. Model Code Rule 514 and Uniform Rule 63(13) did likewise. The Uniform Act, however, abolished the common law requirement in express terms, providing that the requisite foundation testimony might be furnished by “the custodian or other qualified witness.” Uniform Business Records as Evidence Act, §2; 9A U.L.A. 506. The exception follows the Uniform Act in this respect.

The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation. McCormick §§281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa L.Rev. 276 (1961). The model statutes and rules have sought to capture these factors and to extend their impact by employing the phrase “regular course of business,” in conjunction with a definition of “business” far broader than its ordinarily accepted meaning. The result is a tendency unduly to emphasize a requirement of routineness and repetitiveness and an insistence that other types of records be squeezed into the fact patterns which give rise to traditional business records. The rule therefore adopts the phrase “the course of a regularly conducted activity” as capturing the essential basis of the hearsay exception as it has evolved and the essential element which can be abstracted from the various specifications of what is a “business.”

Amplification of the kinds of activities producing admissible records has given rise to problems which conventional business records by their nature avoid. They are problems of the source of the recorded information, of entries in opinion form, of motivation, and of involvement as participant in the matters recorded.

Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of business.” If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision. Gencarella v. Fyfe, 171 F.2d 419 (1st Cir. 1948); Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954); Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148; Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965); Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor Express, Inc., 360 F.2d 933 (2d Cir 1966). Contra, 5 Wigmore §1530a, n. 1, pp. 391–392. The point is not dealt with specifically in the Commonwealth Fund Act, the Uniform Act, or Uniform Rule 63(13). However, Model Code Rule 514 contains the requirement “that it was the regular course of that business for one with personal knowledge * * * to make such a memorandum or record or to transmit information thereof to be included in such a memorandum or record * * *.” The rule follows this lead in requiring an informant with knowledge acting in the course of the regularly conducted activity.

Entries in the form of opinions were not encountered in traditional business records in view of the purely factual nature of the items recorded, but they are now commonly encountered with respect to medical diagnoses, prognoses, and test results, as well as occasionally in other areas. The Commonwealth Fund Act provided only for records of an “act, transaction, occurrence, or event,” while the Uniform Act, Model Code Rule 514, and Uniform Rule 63(13) merely added the ambiguous term “condition.” The limited phrasing of the Commonwealth Fund Act, 28 U.S.C. §1732, may account for the reluctance of some federal decisions to admit diagnostic entries. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945); Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067; England v. United States, 174 F.2d 466 (5th Cir. 1949); Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967). Other federal decisions, however, experienced no difficulty in freely admitting diagnostic entries. Reed v. Order of United Commercial Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v. Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944); Medina v. Erickson, 226 F.2d 475 (9th Cir. 1955); Thomas v. Hogan, 308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284 F.2d 495 (8th Cir. 1960). In the state courts, the trend favors admissibility. Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938); Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 55 A.L.R.2d 1022 (1956); People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245 (1947). In order to make clear its adherence to the latter position, the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries.

Problems of the motivation of the informant have been a source of difficulty and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), exclusion of an accident report made by the since deceased engineer, offered by defendant railroad trustees in a grade crossing collision case, was upheld. The report was not “in the regular course of business,” not a record of the systematic conduct of the business as a business, said the Court. The report was prepared for use in litigating, not railroading. While the opinion mentions the motivation of the engineer only obliquely, the emphasis on records of routine operations is significant only by virtue of impact on motivation to be accurate. Absence of routineness raises lack of motivation to be accurate. The opinion of the Court of Appeals had gone beyond mere lack of motive to be accurate: the engineer's statement was “dripping with motivations to misrepresent.” Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir. 1942). The direct introduction of motivation is a disturbing factor, since absence of motivation to misrepresent has not traditionally been a requirement of the rule; that records might be self-serving has not been a ground for exclusion. Laughlin, Business Records and the Like, 46 Iowa L.Rev. 276, 285 (1961). As Judge Clark said in his dissent, “I submit that there is hardly a grocer's account book which could not be excluded on that basis.” 129 F.2d at 1002. A physician's evaluation report of a personal injury litigant would appear to be in the routine of his business. If the report is offered by the party at whose instance it was made, however, it has been held inadmissible, Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965), otherwise if offered by the opposite party, Korte v. New York, N.H. & H.R. Co., 191 F.2d 86 (2d Cir. 1951), cert. denied 342 U.S. 868, 72 S.Ct. 108, 96 L.Ed. 652.

The decisions hinge on motivation and which party is entitled to be concerned about it. Professor McCormick believed that the doctor's report or the accident report were sufficiently routine to justify admissibility. McCormick §287, p. 604. Yet hesitation must be experienced in admitting everything which is observed and recorded in the course of a regularly conducted activity. Efforts to set a limit are illustrated by Hartzog v. United States, 217 F.2d 706 (4th Cir. 1954), error to admit worksheets made by since deceased deputy collector in preparation for the instant income tax evasion prosecution, and United States v. Ware, 247 F.2d 698 (7th Cir. 1957), error to admit narcotics agents’ records of purchases. See also Exception [paragraph] (8), infra, as to the public record aspects of records of this nature. Some decisions have been satisfied as to motivation of an accident report if made pursuant to statutory duty, United States v. New York Foreign Trade Zone Operators, 304 F.2d 792 (2d Cir. 1962); Taylor v. Baltimore & O. R. Co., 344 F.2d 281 (2d Cir. 1965), since the report was oriented in a direction other than the litigation which ensued. Cf. Matthews v. United States, 217 F.2d 409 (5th Cir. 1954). The formulation of specific terms which would assure satisfactory results in all cases is not possible. Consequently the rule proceeds from the base that records made in the course of a regularly conducted activity will be taken as admissible but subject to authority to exclude if “the sources of information or other circumstances indicate lack of trustworthiness.”

Occasional decisions have reached for enhanced accuracy by requiring involvement as a participant in matters reported. Clainos v. United States, 82 U.S.App.D.C. 278, 163 F.2d 593 (1947), error to admit police records of convictions; Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148, error to admit employees’ records of observed business practices of others. The rule includes no requirement of this nature. Wholly acceptable records may involve matters merely observed, e.g. the weather.

The form which the “record” may assume under the rule is described broadly as a “memorandum, report, record, or data compilation, in any form.” The expression “data compilation” is used as broadly descriptive of any means of storing information other than the conventional words and figures in written or documentary form. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34(a) of the Rules of Civil Procedure.

On the turning discovery into business records, it is even more nefarious when the OC is long gone and the fake signature is affixed.

Edited by Seadragon

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@Seadragon

 

What part of what you posted says that an affidavit has to be made when records are put into the system?  Or at the time of the event?

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Harry may want to compare the facts of my win vs sadly his loss;

 

From my case won on appeal by Harris - Omitting much of it just the key relevant points:
 
"To sustain a summary judgment, Plaintiff needed to provide undisputed admissible evidence that would compel the trial court to find in its favor on every element of the claim. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 292 P.3d 195 ¶18 (Ct. App. 2012).  Plaintiff failed to carry its burden of persuasion. In discussing the evidence needed to sustain a summary judgment on a credit card balance, the Court of Appeals stated:..... (quotes a lot from Allen)
 
As with Wells Fargo in Allen, Plaintiff did not submit any proof showing its entitlement to judgment. It relied on computer generated documents but no-one established the connection between these documents and Defendant. No-one authenticated either the transaction summaries or the bill of sale. There was no evidence tying the Cardmember agreement to Defendant and no showing the proffered Cardmember agreement was signed by Defendant. Although the Arizona Court of Appeals clarified the need for proof indicating a party’s entitlement to judgment in the context of a request for a summary judgment, Plaintiff failed to produce any proof other than its unauthenticated print-outs. 
 
Plaintiff’s Reply to Defendant’s Response to Plaintif’s [sic.] Motion For Summary Judgment (Reply) did little to correct this problem as Plaintiff referenced an Affidavit of Brian Mongoven as support for its evidence about the credit card debt. Mr. Mongoven’s affidavit was ostensibly attached to Plaintiff’s Reply.  However, Exhibit A to that Reply was an affidavit from Paul Saland and not from Brian Mongoven. Additionally, Mr. Saland’s affidavit shows problems akin to those the Court of Appeals found in Allen. Mr. Saland’s affidavit contains assertions that (1) the electronic account records and HSBC Cardholder Agreement were executed and maintained by the original institution; and (2) Paul Saland is Plaintiff’s representative.Plaintiff failed to demonstrate any basis for Mr. Saland’s knowledge as to how the documents were created or kept in the ordinary course of business by HSBC—the original institution. As with the paralegal in Allen, Mr. Saland never claimed to “have reviewed any specific documents or to know the manner in which they were prepared and kept”. His affidavit was insufficient to (1) invoke the business-records exception or (2) support the motion for summary judgment. Similarly, and paralleling Wells Fargo, Plaintiff appeared to have treated its summary judgment motion more like a motion for a default judgment and omitted any authentication for its records. This is insufficient to support a summary judgment."
 
Hearsay Documents And The Need For Authentication
Defendant also challenged the trial court’s evidentiary determinations. Because this Court determined there are material facts in controversy and summary judgment was inappropriate, this
Court does not need to address these evidentiary issues.
 
Statute of Limitations
The parties also disputed when the cause of action accrued. Plaintiff asserted (1) the statute of limitations did not begin until Plaintiff’s predecessor closed the account on October 31, 2009; and (2) the appropriate statute of limitations is A.R.S. § 12–548 (A)(2) re written contracts.
 
Plaintiff wrote:
Here, according to the bank’s records, the account first became delinquent in 2009. Although, the exact date upon which Mr. xxxxxx failed to make his payment is not known with particularity, the account was closed by the bank on October 31, 2009. At this point in time, the breach is certain and the damages are fixed.
 
Generally, a cause of action accrues whenever one person may sue another. Matter of Estate of Musgrove, 144 Ariz. 168, 169, 696 P.2d 720, 721 (Ct. App. 1985). The date when the cause of action accrued is material as Plaintiff did not file its claim until April 24, 2012. If the cause of action accrued on October 31, 2009—and assuming a three year statute of limitations for an open account
 
Plaintiff’s filing was timely. However, if, as Defendant contended, the cause of action accrued in Feb. 2009,—and assuming a three year statute of limitations—the action was time barred. Plaintiff admitted it did not know the exact date when the breach occurred. For purposes of calculating the date for the statute of limitations Plaintiff must establish when the breach actually occurred.
 
On appeal, Plaintiff acknowledged it was unable to do so.
Plaintiff’s claim is predicated on two assertions: (1) the six year statute of limitations for a written contract is the appropriate limitations period for a credit card debt; or (2) even if the three year statute re open accounts were to be applied, Plaintiff acted within the three year period provided the account closing date of October 31, 2009 is used. In contrast, Defendant claimed the cause of action accrued when the credit card bill was first unpaid and argued the parties had an open account. Our Arizona Supreme Court defined open accounts in Krumtum v. Burton, 111 Ariz. 448, 450, 532 P.2d 510, 512 (1975) [citations omitted] as follows: An open account has been defined by this court: ‘Generally speaking, an open account is one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions. * * *’
 
The Arizona Supreme Court continued:
“[T]he, statute of limitations begins to run on an open account from the date of the last item.”Krumtum v. Burton, id., 111 Ariz. at 450, 532 P.2d 513. This Court does not know the “date of the last item” and Defendant has not provided any factual basis for his contention that the account became delinquent prior to Feb. 25, 2009. Instead, Defendant predicated his assertion that the account became delinquent at some time prior to Feb. 25, 2009, on his “backward calculation” as discussed in Defendant’s Motion For Leave To Amend Answer & Affirmative Defenses.
 
Statutes of limitations are enacted to relieve defendants from the litigation of stale claims. Musgrove, 144 Ariz. at 171, 696 P.2d at 723. Plaintiff’s position that the statute did not begin to run until its predecessor closed the account, if taken to a logical extreme, could effectively prolong debt beyond the legislatively determined period for bringing an action as banks and credit card companies could delay closing accounts in order to prolong the limitations period. Plaintiff has the burden of establishing when Defendant made his last payment on the account and not just the date when the bank decided to close the account. Plaintiff had—or should have had—the opportunity to obtain the underlying statements on which it bases its claim. If Plaintiff failed to do so, that is not Defendant’s fault.
 
Partial payments will not avoid the statute of limitations. As the Arizona Court of Appeals stated:
Although our Supreme Court has made no definitive pronouncement on the question, it appears to us that under Arizona law part payment does not, in itself, avoid the bar of A.R.S. s 12-548.
Cheatham v. Sahuaro Collection Serv., Inc., 118 Ariz. 452, 454, 577 P.2d 738, 740 (Ct. App. 1978).
 
III. CONCLUSION. Based on the foregoing, this Court concludes the Dreamy Draw Justice Court erred in granting Plaintiff summary judgment.
 
IT IS THEREFORE ORDERED reversing the judgment of the Dreamy Draw Justice Court.
 
IT IS FURTHER ORDERED remanding this matter to the Dreamy Draw Justice Court for all further appropriate proceedings.
 
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
 
Dated 9/9/2013
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