Can a Debt Buyer Authenticate (Admit into Evidence) an Original Creditor's Business Records?

The General Rule

Do you have a case where a debt buyer[1] is using an affidavit signed by its own employee to introduce account statements of the original bank? That is generally not allowed because the debt-buyer employee has no knowledge of how those records were created or maintained. Similarly, debt-buyer employees probably lack personal knowledge of assignment activity between debt buyers earlier in the chains of transfer.

"A debt buyer's affidavit has no probative value when the affiant's claimed familiarity with the assignor's (i.e. bank) business records is derived solely from the affiant's review of those records after they came into the debt buyer's possession."[2]

The Minority Exception

As an exception to this basic rule of evidence, a minority of courts recognize a 'rule of incorporation,' which provides that records taken into custody by a business are considered "made" by that business if that business integrates the documents into its business records and relies upon them."[3]

But most courts reject this theory since it's inconsistent with the basic rules of evidence. And this rule would not apply to records created by the debt buyer. Moreover, debt buyers rarely integrate the bank's records into their businesses. Bank records include account applications, the original credit agreement, amendments to the agreement, billing statements, additional communications from the creditor and any change of terms, a running account diary, or written communications between the bank and the consumer. Then there is the additional issue of authenticating electronic records as will be discussed in our next blog.

Be alert to who is referencing to documents in your case. Whether you're facing a complaint, summary judgment motion, or post-judgment enforcement action (bank restraint or wage garnishment), fundamental rules of evidence should always be raised and respected.

Contact us to discuss your case.