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Business Records Exception

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Court of Appeals (Ind.) Says Automobile Floorplan Lender Established Proper Foundation for Business Records to Prove Up Damages

by Scott J. Hyman |

In Ct102 Llc v. Nextgear Capital, No. 20A-CC-1909, 2021 Ind. App. Unpub. LEXIS 223, at *3-5 (Ct. App. Mar. 19, 2021), the Court of Appeals affirmed the trial court's finding of damages sustained by a floorplan lender. The facts and procedure were as follows: On remand, the trial court held an evidentiary hearing on damages on October 6, 2020. Tr. Vol.… Read More

Court of Appeal (Cal.) Says Credit Card Issue Properly Sued for Account Stated; Billing Statements Met Exception to Hearsay Rule

by Scott J. Hyman |

In Bank of Am., N.A. v. Byrd, No. G056792, 2019 Cal. App. Unpub. LEXIS 7176 (Oct. 28, 2019), Bank of America, N.A. (the Bank) sued Pamela K. Byrd to recover over $32,000 in credit card debt. The trial court found the Bank's last credit card statement to Byrd constituted a final rendering of the account, and Byrd impliedly agreed to pay… Read More

Foundation of Business Records Matters: District Court (Ind.) Says Discrepancies in Debt Collector’s Call Logs, Read in Concert with Plaintiff’s Testimony, Defeats Summary Judgment

by Scott J. Hyman |

In Scott v. Monterey Financial Services, LLC., 2018 WL 452359, at *2 (N.D.Ind., 2018), Judge Simon found a triable issue of fact sufficient to defeat summary judgment because, in part, of discrepancies in the defendant's call logs and business records. Scott attempts to cast doubt on the reliability of Monterey’s records of the call history by presenting evidence of the omission… Read More

Court of Appeals (Mo.) Affirms Finding of Auction-Sale of Vehicle as Commercially Reasonable, Despite Some Troubling Language from the Court About the Business Records Exception to the Hearsay Rule

by Scott J. Hyman |

In Ford Motor Credit Co. LLC v. Harris, --- S.W.3d ----, 2012 WL 5464340 (Mo.App. S.D. 2012), the Missouri Court of Appeal affirmed a trial court’s finding that the sale of a vehicle at auto auction was commercially reasonable. The Court had some troubling language regarding the auto finance company’s ability to offer custodian-of-records testimony as to documents that it… Read More

California Superior Court Appellate Division Makes it Easier for Banks to Obtain Default Judgments; Orders Judicial Clerk to Enter Judgment on Open Book Accounts without further Proof

by Scott J. Hyman |

In HSBC Bank Nevada, N.A. v. Aguilar, --- Cal.Rptr.3d ----, 2012 WL 1813379 (Cal.Super.A.D. 2012), the Appellate Division of the Superior Court required the superior court clerk to enter default judgments in debt collection cases.  Once a default has been entered on proper service of process, no further prove-up is necessary and the court clerk’s requirement as a condition of… Read More

Supreme Court (Mo.) Holds Debt Assignee Can’t Authenticate Assignor/Creditor’s Business Records to Collect on a Consumer Debt

by Scott J. Hyman |

Hostility exists with regard to the use of secondary evidence to collect debts.  Remember McCullough, where the Court of Appeals for the Ninth Circuit rejected the claim that secondary evidence of forms containing an attorneys' fees clause was insufficient to justify a claim for attorneys' fees?  Recently, the Missouri Supreme Court held that a debt assignee's secondary testimony was insufficient… Read More

District Court (Cal.) Says How to Authenticate a Business Record in an FDCPA Case

by Scott J. Hyman |

In Quinones v. Chase Bank USA, N.A., 2011 WL 4498985 (S.D.Cal. 2011), Judge Battaglia addressed a rather complicated factual pattern relating to whether a debt collector improperly collected a debt from the father or the son.  In addressing the debt collector’s motion for summary judgment, Judge Battaglia overruled Plaintiff’s objections to the debt collector’s custodian of records declaration:    Plaintiffs… Read More

Court (NY) Cites Nathan Detroit in “Guys & Dolls”, Rejects Default Prove-Up

by Scott J. Hyman |

In American Exp. Bank, FSB v. Dalbis, 2011 WL 873512 (N.Y.City Civ.Ct. 2011), Judge Straniere rejected an application for default sought by a Bank against its customer on the basis that there might be a statute of limitations problem and the Bank had not properly proved up the instrument evidencing the debt. Having apparently just appeared at a high school production… Read More