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confused about Michigan business records rule


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Hi guys, Im currently being involved in a credit card law suit with a junk debt buyer and I would like to attack the jdb's affidavit.  The jdb says how they have knowledge of their own records.....I was reading an article and it said that in Michigan, an assignors records transmitted to the assignee are admissible in Michigan under MRE 803(6).  So, I guess now im just confused about how I should go about attacking the affidavit of the jdb.  Could someone please assist me?  Thank you!

 

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"the proponent of the document must demonstrate that the other requirements of Rule 803(6) are satisfied." Cunningham Charter Corp., 2012 WL 1565532, at *3; see also Datamatic Servs., Inc., 909 F.2d at 1033 ("if the source of the information [contained in the business record] is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record" (internal quotation marks and citation omitted));

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Business records exceptions

Palmer v. Hoffman,

318 U.S. 109; 63 S. Ct. 477 (1943)

"the proponent of the document must demonstrate that the other requirements of Rule 803(6) are satisfied." Cunningham Charter Corp., 2012 WL 1565532, at *3; see also Datamatic Servs., Inc., 909 F.2d at 1033 ("if the source of the information [contained in the business record] is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record" (internal quotation marks and citation omitted));

United States v. Borrasi, 639 F.3d 774, 780 (7th Cir. 2011) ("courts may not permit the introduction of hearsay contained within hearsay unless each layer is properly admitted under an exception to Rule 802" (citing Fed. R. Evid. 805)); 2 Kenneth S. Broun, McCormick on Evidence § 290 (6th ed.) ("The common law exception for regularly kept records required that . . . [t]he entrant . . . be acting in the regular course of business, and if the information was supplied by another, that person also was required to be acting in the regular course of business.").

A review of Minford's declaration demonstrates that defendants have failed to lay the requisite foundation for admission of Exhibits A through F. Minford does not claim to be knowledgeable in the record keeping procedures of any of the non-defendant entities. Moreover, when asked at his deposition whether he had any information about what records Sherman Originator and LVNV maintain and how Sherman Acquisition keeps its records, Minford responded no or that he did not know. (See Minford Dep. 21:11-18; 31:1-25.) Thus, by his own admission, Minford is not qualified to testify as to the process by which Sherman Originator, LVNV, and Sherman Acquisition created and maintained Exhibits A through D. As to Exhibits E and F, which include a bill of sale signed by representatives of Sherman Originator III and Citibank South Dakota and credit card statements issued by Sears, Minford does not claim to be knowledgeable in the record keeping procedures of either Sherman Originator III or Citibank and admitted under oath that he did not know anything about Citibank's computer system. (Id. 32:13-15.) Based on this record, it is clear that Minford lacks personal knowledge of the procedure used to create and maintain Exhibits A through F, and he is not capable of testifying as a qualified witness under Rule 902(11). See Reese, 666 F.3d at 1017. The court therefore declines to admit Exhibits A through F as records of regularly conducted business activity, and will not consider them in ruling on defendants' motion.[8]

Without Exhibits A through F, defendants cannot show an unbroken chain of assignment entitling them to stand in Citibank's shoes and enforce the arbitration provision contained in Webb's credit card agreement. All that is evident from the record is that Citibank sold Webb's account to Sherman Originator III on or about March 30, 2009, and that at the time of the sale, Citibank's records indicated that Webb owed an outstanding balance. (Handy Aff. ¶¶ 6, 8.)[9] Defendants motion to compel arbitration must be denied.[

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The above cites are not debt collection cases but, the argument is still very sound.

MRE 803 (6) does mimic FRE 803(6) and says ....... in part:

 

A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness .............. unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

 

Plaintiff didn't make these records; they were transmitted. Where is the testimony of the "custodian or other qualified witness (a person with knowledge)" that did make these records to certify that they are authentic?

 

IMO, if there isn't an affidavit from the OC testifying to the authenticity of these 'records' ............ it's just plain hearsay.........  or, at best, conjecture.

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there is an affidavit of the original creditor that states that how the original creditor sold a pool of charged off documents to Midland but it doesn't specify that my account was purchased.

 

There's your argument ........... let them prove that your account was sold to them in that 'pool'.

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Sometimes, a clear and concise example to the judge, telling him the equivalent of allowing a 'hearsay' affidavit.  In your arguments, tell the judge:

 

"Your honor, imagine if someone came in here to give eyewitness testimony in a traffic accident case and they didn't actually see the crash. They just read about it somewhere. Well, this is the same thing. The debt buyers don't know anything about the debt. They just read about it."

 

This is a perfect example, and strong argument as to what the 'affidavit' really is.

 

Good luck!

 

-J
 

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