JoshS

Questions re AR rules of evidence, specifically hearsay exceptions

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    In response to my Motion to Strike Plaintiff's Affidavit(which is the standard PRA affidavit), PRA is claiming the affidavit is admissible as evidence under AR rule of evidence 803(6) or (7). "Plaintiff has properly incorporated its predecessor in interest business records into its own business records. There is no prohibition against this practice. See Marshall Trucking Co. v. State, 23 Ark. App. 110 (1988)". Do I need to file a response to this, and if so, what argument do I use?

   

   I know this is not correct, and that you can't just use someone else's business records as your own, but I don't know how to present this. Cates v. State, 589 SW 2d 598 - Ark: Court of Appeals 1979 may also be of interest - it provides criteria for admission of business records.

-josh

 

Body of my Motion to Strike follows:

 

1. Plaintiff has submitted into evidence an affidavit claiming that the affiant has personal knowledge of business records related to the aforementioned alleged debt referred to herein as PLAINTIFF’S AFFIDAVIT.

 

2. The affiant writing the PLAINTIFF’S AFFIDAVIT  does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, creditor name.

 

3. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of how business records were kept at the original creditor.

 

4. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of the sale or assignment of the alleged debt from the original creditor to PORTFOLIO RECOVERY ASSOCIATES, LLC.

 

WHEREFORE, the Defendant prays the Court that Plaintiff's Affidavit be stricken from the Complaint filed herein, in which it is incorporated by reference.

Respectfully submitted,

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Looks like PRA didn't bother reading Marshall all the way through. Simply put, you would argue that that affidavit is based entirely upon records from other entities. Plaintiff is not the original creditor therefore all documents from the original creditor are considered hearsay:

 

Below is a template with applicable Arkansas case law. You may need to tweak it to match the specific affidavit they used.

 

1. Plaintiff's affidavit itself states it  based upon the business records of other entities. Plaintiff is not [ORIGINAL CREDIT NAME HERE]. Consequently, any documents from the original creditor must satisfy both the requirement of authentication, and hearsay. See Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002).  ("The requirement of authentication is separate from the requirement that a hearsay document must satisfy the applicable hearsay exception for admissibility").  

 

2. Before a discussion of hearsay may be undertaken it must first be determined that the document is what it is purported to be. Davis supra

 

4. In order for the underlying documents to satisfy the business records exception, seven factors must be met. The business records exception to the hearsay rule has been interpreted as having seven requirements. To be admissible under this exception, the evidence must be (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of a regularly conducted business, (6) which has a regular practice of recording such information, (7) all as shown by the testimony of the custodian or other qualified witness. Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (App.1979).

 

5.  In Wildwood Contractors v. Thompson-Holloway Real Estate Agency, 17 Ark.App. 169, 705 S.W.2d 897 (1986), the court held that only those documents meeting those criteria and which are also found to be trustworthy are admissible under Rule 803(6).

 

5. The above considered, for any document from [ORIGINAL CREDIT NAME HERE] to be admissible, testimony must be present from a custodian or qualified witness from the original creditor. More specifically, the witness must be able to testify that the alleged account was sold to PRA.

 

6. See also Marshall Trucking Co. v. State, 23 Ark. App. 110 (1988), "Although there is no prohibition against one company integrating records made by another into its own business records, the party offering the record must still establish by a competent witness that its content is worthy of belief. The mere fact that the memorandum is retained in appellant's files does not supply the required foundation for admission.", citing United States v. Davis, 571 F.2d 1354 (5th Cir. 1978)

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    Thanks, that's quite elegant. I read all the cases cited, actually my first visit to Google Scholar....I had been using the interface the Arkansas court system provides to look up case law - it was quite tedious. Google Scholar is like the wikipedia of case law, I spent way longer than I should have following links to citations...I find I'm beginning to like reading case law and all the other legalese involved in this business. Perhaps I should have been an attorney.

 

    Now that I've extricated myself from Scholar, I don't know what to title my response. Plaintiff's argument I'm answering here is entitled 'Response to Defendant's Motion to Strike Plaintiff's Affidavit'...so would my response be 'Response to Response..." or "Defendant's Answer to..." or "Defendant's Opposition to..."? I realize it probably doesn't matter, but I prefer to be precise.

thanks...

josh

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Josh, I don't know where you are with your case, but based on personal experience, TWICE, the legal standards are extremely low to get a JDB affidavit stricken -- it just won't be stricken by the judge.  Trust me, the JDB will have met the minimal legal requirements to have the affidavit 'admitted' -- but that's ok, because that is NOT what is going to let them win in any way.

 

The JDB atty, will respond to the strike motion with legalese, stating that the "proper" response to the affidavit is NOT a motion to strike, but a FULL DENIAL.  This 'denial,' will force the JDB to present other/additional proof.  But, at the end of the day, the affidavit will not be stricken.

 

Use your own discovery to rip their case apart.  The JDB cannot provide the PROOF necessary to win -- unless you let them!  Send discovery, they will answer with BS.  Then, you file a motion to COMPEL discovery.  That's where the JDB falls apart because they do not have the information you NEED to defend the alleged debt.  The JDB will count on you NOT filing a compel motion so they can win.  Don't let them do this.

 

-J

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Ok I have a hearing on my MTS next week...what can I expect, what do I need to prepare, bring with me, etc.? my experience with courtrooms consists wholly of traffic violations. I did file the suggested response above, so I already have all the cited opinions printed. in short, I am kind of nervous. Any and all assistance is most welcome.

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@JoshS

 

There is no prohibition against this practice. See Marshall Trucking Co. v. State, 23 Ark. App. 110 (1988)

 

 

Use their own case law references against them.   The following is also from Marshal Trucking.

 

Although there is no prohibition against one company integrating records made by another into its own business records, the party offering the record must still establish by a competent witness that its content is worthy of beliefMarshall Trucking Co. v. State, 23 Ark.App. 110, 743 S.W.2d 16, 18 (1988).

In denying admission of the record, the trial court noted that no one had testified as to the accuracy of Georgia Pacific's scales, the qualifications of the operator to weigh the truck and make the record entry, or any of the other circumstances under which the record was made. Without discussing all of the circumstances bearing on the trustworthiness of the record, we conclude that the trial court did not abuse its discretion in holding that the record was not competent to prove the truth of the matters asserted in it, was not worthy of belief, and should be excluded. Id at 19.

 

Read the ruling in that case.

 

http://scholar.google.com/scholar_case?case=1175985877229354568&hl=en&as_sdt=4,4&kqfp=14289947514083235088&kql=195&kqpfp=13155783092842627289#kq

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@BV80 thanks, I have already seen and used that in my response to plaintiffs response to my motion to strike. Another question, how do I cite case law in person to the judge?

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