Noreturn

OC's Business Record Affidavit Help Trial Approaching

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Received notice of intent to use 902 (11) evidence at trial. The mandatory notice included OC business records affidavit and "37" documents. The documents appear to be billing statements covering a 12 month period, including alleged last statement. The statements are certified to be true and accurate. 

The thing is...every monthly statement is obviously altered or edited. The actual text covers approximately 1/3 of the page. The font is super small (not quite fine) making it hard to evaluate.

Each monthly cycle includes two pages 1 of 2 & 2 of 2, reflecting  charges/credits, balance, due date and so on. However the "last" billing cycle is still just two pages although page # footer indicates there should be 5. OC sent 1 of 5 and 2 of 5 for the cycle plaintiff is relying on for an account stated cause of action. Do I have a valid trustworthiness argument? 

Please take look at OC affidavit. Affiant references 37 documents without identifying them. Affiant fills in blanks in notary statement at the bottom. I do not see a sworn statement under penalty of perjury that is required, maybe it is implied by notary. I have no clue what that jargon truly means. The affiant claims to be litigation support employed by an AFFILIATE of cap1, not sure if it makes a difference? 

Thank in advance. Less than 4 weeks before I trial, I would love to have this 902 (11) evidence go away via motion in limine. 

 

Scan_20200127.thumb.jpg.0a7a43ae453d8def3f9574198c69fdbd.jpg

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29 minutes ago, Noreturn said:
 
 

Received notice of intent to use 902 (11) evidence at trial. The mandatory notice included OC business records affidavit and "37" documents. The documents appear to be billing statements covering a 12 month period, including alleged last statement. The statements are certified to be true and accurate. 

The thing is...every monthly statement is obviously altered or edited. The actual text covers approximately 1/3 of the page. The font is super small (not quite fine) making it hard to evaluate.

Each monthly cycle includes two pages 1 of 2 & 2 of 2, reflecting  charges/credits, balance, due date and so on. However the "last" billing cycle is still just two pages although page # footer indicates there should be 5. OC sent 1 of 5 and 2 of 5 for the cycle plaintiff is relying on for an account stated cause of action. Do I have a valid trustworthiness argument? 

Please take look at OC affidavit. Affiant references 37 documents without identifying them. Affiant fills in blanks in notary statement at the bottom. I do not see a sworn statement under penalty of perjury that is required, maybe it is implied by notary. I have no clue what that jargon truly means. The affiant claims to be litigation support employed by an AFFILIATE of cap1, not sure if it makes a difference? 

Thank in advance. Less than 4 weeks before I trial, I would love to have this 902 (11) evidence go away via motion in limine. 

 

Scan_20200127.thumb.jpg.0a7a43ae453d8def3f9574198c69fdbd.jpg

"37documents" also includes a Forward Flow Receivable Sale Agreement Bill Of Sale dated 06/27/2018

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Altered wasn't the right language, edited perhaps? Formatting?  Insignia differences in 2 series and size. But really can't verify the actual content due to the small size of record  presented. I received full size documents prior to this suit in response to debt validation, full size documents in discovery now they're trying to authenticate with a reduced sized document

1 hour ago, Harry Seaward said:

In what way? Resizing isn't altered. 

doesn't make sense.

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15 minutes ago, Noreturn said:

But really can't verify the actual content due to the small size of record  presented.

This is different. There's no rule against resizing, but if it's illegible, why would you want them to get good copies to sink you with? 

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Are you suggesting waiting until trial to object? Oh man I'd be even more nervous... but could be worth it.

If I wait until trial do I risk waiving defenses?

What are your thoughts about the affidavit I posted? Is there anything I can use or is it solid?

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I don't see anything glaring on the affidavit. She attests to personal knowledge, says the records were created at or near the time as part of Cap 1's regular business activities and that they were maintained accordingly. She doesn't specifically name each of the 37 documents, but does state that there are 37, and that they are attached. I think it will hold water. 

I guess the only thing i would be concerned about is if they show up to court with full size records, but then you'd have grounds to have them stricken, but more likely a continuance, since they are not what they submitted with their disclosure notice. 

The court might only give you an hour to look over the records. Since you have already gotten them in the past, you wouldn't really need any time since you'll have whatever argument prepared ahead of time. 

Is this a JDB, or is it Cap 1 suing? 

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Debt buyer is PRA, account stated cause.

I beat their summary judgment by objecting to their evidence and with my declaration (no final statement sent).

This affidavit is the only OC evidence they've submitted except general bill of sale paragraph. Nothing yet from OC attesting to account existence, balance, mailing statements...so forth.

Does it matter that affiant is an affiliate?

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15 minutes ago, Noreturn said:

Nothing yet from OC attesting to account existence, balance, mailing statements...so forth.

Were there actually 37 documents attached to the OC's affidavit?  Including billing statements with your name and address showing charges and credits?

26 minutes ago, Noreturn said:

Does it matter that affiant is an affiliate?

No, because she testified under oath that she has personal knowledge of Cap1's business records.

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14 hours ago, Harry Seaward said:

No, because she testified under oath that she has personal knowledge of Cap1's business records.

After doing some reading, it seems that ID’s requirements are a bit more stringent.  Portfolio v. McDonald is pretty much on point with the OP’s case.  According to the ID Supreme Court, claiming “personal knowledge” alone is not enough.

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1 minute ago, Harry Seaward said:

I understood OPs question to ask if being an affiliate was in itself a deal breaker. 

Oh, ok.  Sorry about that.  I agree that affiliation is not a deal breaker.  

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19 hours ago, Noreturn said:

doesn't make sense.

Sizing or format, in and of itself, is not really the issue.  Simply changing the format or font size does not mean the information is incorrect.  However, this is how McDonald addressed documents in Portfolio v. McDonald.

MacDonald argued that the statements contained in the Robertson Affidavit are likely based on information contained on a computer screen. We agree. The fact that Robertson's statements are based on electronic information, however, still implicates Rule 803(6). The Rule makes it clear that a business record can be in any format. In other words, a paper printout is not required to fall under the Rule. Having said that, however, we recognize that electronic information raises heightened concerns about accuracy and authenticity.” 

Notice that MacDonald addressed the issue of electronic information.  The court understood that concern.  I would use his argument.

In my opinion, the affidavit in your case does NOT meet the standard set by your state Supreme Court.  The court referenced Rule of Evidence 902(11) in the following:

Rule 902(11) allows the admission of certified records of regularly conducted activity without extrinsic evidence of authenticity. Under the rule, the custodian of the record, or another qualified person, must certify that the record: (1) was made, at or near the time of the occurrence of the matters in the record to be admitted, by a person who has knowledge of those events; (2) is kept in the course of regularly conducted activity; and (3) was made as a regular practice. Because we have ruled that the Robertson Affidavit is inadmissible, there is no certification for the Sears credit card statements.”  

Although Rule 803(6) and Rule 902(11) do not prohibit the introduction of the Robertson Affidavit or the Sears credit card statements, these rules lay out basic foundation requirements that simply were not satisfied in this case.”   

In regard to a motion in limine, I’m torn. Personally, I would not file that motion unless I knew my motion was correct and proper.  Considering that I’m not an attorney, I would not “fly by the seat of my pants”.  I’d want to have a correct and proper copy of that motion to go by.  If you feel you could write that proper motion, go for it. 

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Same case, I removed that affidavit once it was objected to and stuck during summary judgment (also removed for privacy protection against opposition) This affidavit came following plaintiffs summary judgment hearing. The former Capital One affidavit was issued also from the same employer / affiliation she did not have personal knowledge. 

 

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My intention was to ask if all of the points I listed could lead a judge  to agree there are genuine trustworthiness concerns. Sorry if my communication was unclear, hubby

21 hours ago, Harry Seaward said:

I don't see anything glaring on the affidavit. She attests to personal knowledge, says the records were created at or near the time as part of Cap 1's regular business activities and that they were maintained accordingly. She doesn't specifically name each of the 37 documents, but does state that there are 37, and that they are attached. I think it will hold water. 

I guess the only thing i would be concerned about is if they show up to court with full size records, but then you'd have grounds to have them stricken, but more likely a continuance, since they are not what they submitted with their disclosure notice. 

The court might only give you an hour to look over the records. Since you have already gotten them in the past, you wouldn't really need any time since you'll have whatever argument prepared ahead of time. 

Is this a JDB, or is it Cap 1 suing? 

 

2 hours ago, Harry Seaward said:

It's all good. I'm not even sure that's what he was asking. 🤷‍♂️

had his fricken guitar cranked.

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Yes they attached 37 documents. 

one page is a document titled Bill of Sale / Forward Flow the rest are

12 consecutive monthly billing statements. 3 pages each month.

each month the 3rd document is generic info I assume normally printed on the backside of a statement. 11of the 37 are identical repeats

3 hours ago, BV80 said:

They attached the 37 documents?

 

 

 

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15 hours ago, Noreturn said:

Yes they attached 37 documents. 

one page is a document titled Bill of Sale / Forward Flow the rest are

12 consecutive monthly billing statements. 3 pages each month.

each month the 3rd document is generic info I assume normally printed on the backside of a statement. 11of the 37 are identical repeats

 

 

 

Then, I would focus on what your Supreme Court ruled should be included in an affidavit in order to sufficiently authenticate business records.  

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