LIMINE: BUSINESS RECORDS: TRYING A CASE BY DEPO

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LIMINE: BUSINESS RECORDS: TRYING A CASE BY DEPO

Postby Administrator » Mon Sep 29, 2014 10:39 pm

CACH, LLC NUMBER: 504,418-B

VERSUS FIRST JUDICIAL DISTRICT COURT

ARLENE FARLEY CADDO PARISH, LOUISIANA
NO TRIAL DATE SET AT THIS TIME

DEFENDANT’S RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION IN LIMINE

MAY IT PLEASE THE COURT:
Defendant, ARLENE FARLEY, respectfully opposes the Motion in Limine filed by plaintiff, as follows:
I. BACKGROUND
Defendant is an local lady who found herself named as a defendant in the above entitled and captioned lawsuit. She was served with a lawsuit filed by the plaintiff-purported debt collector back in July, 2006. She sought information about the alleged debt from plaintiff. She was told by plaintiff’s representative that the alleged debt pertained to a car loan. She filed a responsive pleading and Answer to the lawsuit on July 24, 2007. Since that time, she retained counsel to assist in understanding these proceedings and investigating the basis of this lawsuit.
Defendant has been sued by plaintiff based on an alleged Bank of America account number 6501-0003-3889-3, which plaintiff claims she opened in April, 2005. In fact, she does not have such an account with Bank of America. Some time ago, she borrowed monies from Bank of America to buy a used car and Bank of America assigned account number 4427-1030-2384-9820 to that loan/line of credit. That loan has nothing to do with the alleged account sued upon herein. Bank of America also allowed cash advances to that secured loan/line of credit. The credit line was $7,500.00 and not ever near $24,870.69. Defendant has continued to make payments on the Bank of America account number 4427-1030-2384-9820 of roughly $400.00 per month. As of February 2007, the alleged balance [on the only Bank of America debt she has had] is $8,811.40 Defendant does not owe CACH, LLC or Bank of America on any account numbered 6501-0003-3889-3 and does not owe CACH, LLC or Bank of America $24,870.69. Interestingly, Bank of America made efforts to provide her a credit card tied to the account number 4427-1030-2384-9820 but she denied that overture.
On June 3, 2009, a Scheduling Order was entered requiring plaintiff to file witness and exhibit lists. Those were due within 30 days of the order. Plaintiff failed to file any such lists. Plaintiff filed a pre-trial brief suggesting that witnesses and evidence will be offered which had not been disclosed, in discovery, or listed in any witness of exhibit list. Exclusion of offerings in violation of the scheduling order is a proper and enforceable result. Horton v. Williams, Not Reported in So.3d, 2009 WL 839049 [La. App. 1 Cir. 2009]; In re Succession of Gates, 746 So.2d 193 [La. App. 2 Cir. 1999]. Your Honor contacted both counsel about defendant’s motion to strike, et al, as the previously scheduled trial date was approaching. The trial date was continued without new date.
Since that time, plaintiff filed the present motion in limine seeking to have certain proposed evidence to be admitted.
II. PLAINTIFF CANNOT USE AN AFFIDAVIT AT TRIAL
Recently plaintiff filed a Motion in Limine seeking a court order to permit an out-of-state witness to present either an affidavit or deposition in lieu of being required to testify live at trial. This is a most awkward motion and defendant objects to the proposed motion and request. Given the facts in this case, it is crucial that any representative of plaintiff [and any other alleged assignee or creditor] be subject to scrutiny and that proper authority, foundation, and knowledge be tested and examined by defendant. Undersigned counsel knows of no rule of law permitting a corporate representative to submit an affidavit into evidence over foundation, hearsay and similar objections [as this defendant asserts] for trial purposes.
An affidavit containing proposed trial testimony is not a “business record” under the exception to the hearsay rule.
III. PLAINTIFF IS NOT “UNAVAILABLE”
Plaintiff has chosen to file its suit here. CACH will undoubtedly have to present some representative to testify at trial. That witness will further be unable to introduce records of Bank of America, any car dealer, etc. CACH is an end-of-the-line debt collector and lacks any foundation to testify about the alleged dent or facts leading up to it. CACH is not unavailable for trial.
This Honorable Court has great discretion in the control of the presentation of evidence. Defendant submits that if plaintiff were permitted to conduct the trial on out-of-state deposition transcripts and efforts to shuffle papers into evidence, defendant’s rights will be prejudiced.
Plaintiff apparently acknowledges that it is not an “absent” or “unavailable” witness at trial. [[FN 1 - “Testimony at trial as to the unavailability of the two men consisted of Reine's counsel's statements that his secretary called Mr. Rodrigue and that his secretary spoke to Mrs. Rodrigue who informed her that the men were out of town. Grillot's counsel objected at trial to the use of hearsay evidence to establish the unavailability of the witnesses. We agree with the Louisiana jurisprudence which holds that “[i]t is clear ... that hearsay evidence may not be considered in the judicial inquiry as to unavailability. Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La. App. 4th Cir. 1975) [footnote omitted].” McKinley v. Dalton, 355 So.2d 1033, 1035 (La. App. 4th Cir. 1978).” Reine v. Grillot, 505 So.2d 1179 [La. App. 5 Cir. 1987], w.d., 512 So.2d 457 [La. 1987].]] The Dickens decision, 762 So.2d 1193, cited by plaintiff supports defendant’s position. Plaintiff cannot procure its own absence. Since trial is not presently rescheduled, plaintiff’s motion highlights the need to coordinate our trial date with the availability of plaintiff’s representative. Hence, plaintiff needs to identify that person at this time. From motion practice, we are aware of the identity of an affiant who provided questionable testimony for plaintiff in the affidavit that was filed.
It is unclear how plaintiff can determine, at this time, that its witness/representative “will be unavailable” with certainty as claimed. Page 2, plaintiff’s memo. This Honorable Court, to the contrary, should deny the motion by plaintiff and require plaintiff to bring its witness[es] to trial. The volume of proposed documents and the importance of the issues to be addressed cannot be adequately conducted by telephonic or video deposition. Silva Run Worldwide, Ltd. v. Gaming Lottery Corp., No. 96 Civ. 3231, 2003 WL 23009989, at *2 (S.D. N.Y. 2003) (rejecting telephonic or video deposition because of importance of testimony and volume of documents). The travel and deposition expenses far outweigh the cost of bringing that witness to trial.
No proposed deposition of plaintiff has been noticed or taken. If this Honorable Court permits plaintiff to try its case by deposition, then defendant respectfully seeks adequate notice and opportunity to object and opportunity for defendant to travel to the site of the deposition, if ever noticed. Further, plaintiff should be cast with the costs of travel and participation by defense counsel. Commodity Futures Trading Commission v. Commodity Investment Group, Inc., No. 05 Civ. 5741, 2005 WL 3030816, at *2 (S.D. N.Y. 2005) (requiring plaintiff to pay expenses of defendant's counsel in connection with distant depositions); Mengele v. Patriot II Shipping Corp., No. 99 Civ. 8745, 2001 WL 1160661, at *1-2 (S.D. N.Y. 2001) (upholding order for defendant to pay costs of plaintiff's counsel for out-of-state deposition); R.S. ex rel. S. v. Ridgefield Board of Education, No. 3:06CV01783, 2008 WL 1989774, at *2 (D. Conn. 2008) (denying request for telephone or video deposition on ground that it could “hamper the Plaintiffs' attorney's ability to fully conduct the deposition”); Willis v. Mullins, No. CV F 04 6542, 2006 WL 894922, at *3 (E.D. Cal. 2006).
IV. PLAINTIFF CANNOT SUBMIT BANK OF AMERICA’S PAPERS
Further, plaintiff cannot submit the “business record” of its alleged predecessor Bank of America, NA, absent a comparable evidence deposition to lay foundation and acquire first hand testimony about interpretation of any business record. Defendant would similarly object on the bases of lack of foundation, hearsay and object to any effort of CACH to testify about interpretation of a Bank of America document.
The Second Circuit has recently and directly addressed the issue. In State v. Nelson, --- So.3d ----, 2009 WL 3448831 [La. App. 2 Cir. 2009], the court stated: “In State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006), the Supreme Court explained the “business records” exception to our hearsay rule. The Court stated: The witness laying the foundation for the admissibility of business records need not have been the preparer of the records; however, the witness must be familiar with and able to testify from personal knowledge about the bookkeeping and accounting procedures of the entity whose business records are sought to be introduced. Under Art[icle] 803(6), it is essential that a custodian or other qualified witness testimonially explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded. Id. at 327, citing Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La. App. 2 Cir. 1990)...Even if LeadsOnline.com could be considered an acceptable source for the information, there was no testimony from a qualified representative of the company to show that the records introduced in this case were those transmitted to the web site by the dealers in question. The records were not those of a scrap dealer or related business; rather, they were reports by a third party of what purported to be submitted business records. Accordingly, we find that the records from LeadsOnline.com, and the police officer's testimony with regard to those records, were hearsay evidence, and, therefore, inadmissible pursuant to LSA-C.E. art. 803, in the absence of testimony from the custodian of the records or other qualified witness. Thus, the trial court erred in admitting the evidence obtained from LeadsOnline.com. [emphasis added.].” Nelson is on point.
Even prior, the Second Circuit addressed the same issue. In Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122 [La. App. 2 Cir. 1990], the court held: “On this record we must conclude that the trial court was clearly wrong in admitting P-1. Boss Oil's invoices, Cole's testimony regarding them, and portions of the Cole Oil statement clearly were hearsay or were founded on hearsay. Cole simply was not the qualified witness that is necessary to establish the C.E. 803(6) business records exclusion in these respects:
Boss Oil invoices.
The 14 Boss Oil invoices were obviously prepared by one or more third parties in connection with and for use by Boss Oil. Third party invoices, prepared by an out-of-court declarant, constitute hearsay. Cole's testimony, which was based entirely on third party oral and written statements, is “double hearsay.” “Double hearsay” does not preclude admissibility if the statutory requirements are met. See, e.g., C.E. Arts. 801, 803(6) and 805 and related Comments. The statutory requirements are not met in this record.
Cole had no firsthand or personal knowledge about Boss Oil, its business records and accounting procedures or the “facts” contained in its invoices. He was never employed by or otherwise affiliated with Boss Oil when the invoices were prepared. He played no role in their creation or compilation. He knew nothing about the source or content, the method or circumstances of preparation or accuracy, trustworthiness or authenticity of the invoices.” Cole is directly on point. Also: Riddle v. Unifund CCR Partners, --- S.W.3d ----, 2009 WL 3208112 [Tex .App. - El Paso 2009] [Credit cardholder agreement, telemarketing application, and account statements of original creditor were inadmissible under business records exception to hearsay rule in subsequent creditor's action against debtor to recover payment; witness for subsequent creditor stated that the information was inputted by someone at original creditor, although he had no personal information about how the information was inputted or how the information was obtained, and nothing indicated how subsequent creditor knew of the events recorded on the third-party documents.].
Finally, another case should be considered as it addressed the business records exception. In Williams v. Augustus, 506 So.2d 630 [La. App. 4 Cir. 1987], the court stated: “Hearsay evidence is generally inadmissable as being unreliable because it is based on statements by persons not before the court or unavailable for cross examination. The business records exception to the hearsay rule is predicated upon considerations of reliability and necessity. Herlitz Construction Co. v. Clegg Concrete, Inc., 378 So.2d 1002 (La. App. 1st Cir. 1979). Business records are admissable as proof of their assertions if: 1) Persons concerned with recording the information are unavailable for testimony; 2) The first collected record available to or usable by the court is introduced; 3) The records are identified at the trial by one familiar with the record keeping procedure; and 4) The evidence seems reliable after considering such factors as contemporaneousness of the entry with the occurrence of fact recorded; first-hand knowledge of the entrant; existence of a business or professional duty to record or report the facts in the regular course of business; completeness and honest appearance of the books; absence of fraud in making the entries or in destroying the supporting memoranda and perhaps, whether the books belonged to a third party. Comment, 21 La.L.Rev. 449 (1961) and cases cited therein.”
V. ADDITIONAL CONCERNS ABOUT PLAINTIFF’S PROPOSAL
Defendant notes that the proposed evidentiary deposition process in this case will present a particular problem for plaintiff. Evidentiary objections will be made and must be ruled upon or plaintiff runs an enormous risk of failing to properly introduce evidence and testimony through its witness. Defendant will make those objections. Plaintiff’s witness will be interrogated as to why the witness cannot travel to Louisiana to appear live at a trial yet to be rescheduled. The deposition would have to be videotaped so that Your Honor can scrutinize the veracity of the witness. That is an expense that should be borne by plaintiff, as well as otherwise unnecessary and duplicative travel and deposition expenses.
The purported Bank of America affidavit is hearsay and not capable of being introduced at trial and cannot be introduced as a purported business record, which it is not.
A number of these documents listed on page 3 of plaintiff’s motion have not been produced to defendant and the documents are not attached to the motion copy served on defendant. By descriptions listed alone, defendant will not consent to any of them being introduced and would assert foundation, hearsay and other objections to each. Even CACH’s alleged balance ledger is hearsay as to the content since CACH merely wrote down what it was allegedly told by Bank of America. On the whole, the documents listed are not records of CACH.
The motion in limine is itself an evidentiary hearing and plaintiff cannot meet its burden on the issue raised. [[FN 2 - “A motion in limine presents an evidentiary matter that is subject to the great discretion of the trial court. Heller v. Nobel Insurance Group, 2000-0261 (La. 2/2/2000), 753 So.2d 841; Randall v. Concordia Nursing Home, 2007-101 (La. App. 3d Cir. 8/22/07), 965 So.2d 559, writ denied, 2007-2153 (La.1/7/08), 973 So.2d 726. This great discretion extends to the trial court's assessment of the probative value of evidence. Green v. Claiborne Elec. Co-op., Inc., 28,408 (La. App. 2d Cir. 6/26/96), 677 So.2d 635.” Taylor v. Dowling Gosslee & Associates, Inc., --- So.3d ----, 2009 WL 3190474 [La. App. 2 Cir. 2009].]]

Respectfully submitted,

Bodenheimer, Jones & Szwak, LLC



By:
David A. Szwak, LBR# 21157, TA
416 Travis Street, Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400[318] 424-1400
FAX 221-6555
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel, by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid, on this the ____ day of __________________, 2009.


___________________________________
OF COUNSEL

=====================


CACH, LLC NUMBER: 504,418-B

VERSUS FIRST JUDICIAL DISTRICT COURT

ARLENE FARLEY CADDO PARISH, LOUISIANA
NO TRIAL DATE SET AT THIS TIME

DEFENDANT’S SUPPLEMENTAL RESPONSE IN OPPOSITION
TO PLAINTIFF’S MOTION IN LIMINE

MAY IT PLEASE THE COURT:
Defendant, ARLENE FARLEY, respectfully file this supplemental memo in opposition to the Motion in Limine filed by plaintiff, as follows:
Plaintiff filed a supplemental memo in support of its motion in limine by telefax to the court on December 29. Plaintiff refers to this action as one involving business records only. Defendant contends that the case involves more than plaintiff’s self-serving and generated documents. Indeed, plaintiff claims that the origination of the subject account involved a “predecessor.” [[FN 1 - A predecessor entity is one that was merged into the subsequent entity, or is somehow the same entity. CACH is a separate entity and not the same as any prior assignee of the alleged account. See, ex., Johnson v. GAPVT Motors, Inc., 292 Ga.App. 79, 663 S.E.2d 779 [Ga. App. 2008]. CACH purchases Bank of America accounts and, in Johnson, bought it with a right to rescind the assignment.]] In fact, the alleged creditor, Bank of America, NA, has no relationship to plaintiff. Plaintiff is a debt collector that purchases and attempts to collect aged and, in many cases, time-barred debts. Bank of America, NA, is believed to have sold the subject debt portfolio to FIA Card Services, NA, a revolving credit company that also acquires debt that is not collected by Bank of America. CACH, LLC, is actually “Collect America, Ltd.,” the debt buyer. The relationship is confirmed through the Louisiana Secretary of State records, http://www.sos.louisiana.gov/tabid/819/Default.aspx, and those of the Colorado debt collection registration and recordation system, http://www.coloradoattorneygeneral.gov/ ... port_2.pdf.
Defendant further objects on the basis of her rights to due process and the right to confront witnesses. The Confrontation Clause mandates that a competent witness present testimony and evidence. Kentucky v. Stincer, 482 U.S. 730, 737, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (“[T]he Confrontation Clause is violated when hearsay evidence is admitted as substantive evidence against the defendant with no opportunity to cross examine the hearsay declarant at trial.”); Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (“The primary object of the [Confrontation Clause] was to prevent depositions or ex parte affidavits ... being used ... in lieu of a personal examination and cross examination of the witness.”).
As an alleged assignee of an account from Bank of America, plaintiff takes a consumer credit account subject to all claims and defenses a consumer has against the original creditor. 16 CFR 433, et. seq., but further as an alleged assignee, plaintiff has the ability to acquire accounts with recourse and other protections so as to place the burden on Bank of America to repurchase and rescind the sale of accounts involving fraud, mistakes and other defects such that plaintiff cannot collect upon. Thus, plaintiff’s argument that it is too expensive to comply with the rules of evidence and procedure laid down by Louisiana law is no excuse. Compare In re DePugh, 409 B.R. 84 [Bkrtcy. S.D. Tex. 2009] [One of CACH’s competitors, LVNV, attempted the same end run on evidentiary rules and LVNV was denied].
This Honorable Court should deny the motion in limine filed by plaintiff. Plaintiff suggests that it filed a case that it could not pursue economically but that is no justification to abandon the rules of evidence. Defendant does not agree to and specifically objects to plaintiff’s effort to force an out-of-state deposition and to force a deposition telephonically.

Respectfully submitted,

Bodenheimer, Jones & Szwak, LLC



By:
David A. Szwak, LBR# 21157, TA
416 Travis Street, Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400[318] 424-1400
FAX 221-6555
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel, by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid, on this the ____ day of __________________, 2010.


___________________________________
OF COUNSEL

===============
CACH, LLC NUMBER: 504,418-B

VERSUS FIRST JUDICIAL DISTRICT COURT

ARLENE FARLEY CADDO PARISH, LOUISIANA

ORDER ON PLAINTIFF’S MOTION IN LIMINE

THIS MATTER HAVING COME ON FOR HEARING OF PLAINTIFF’S MOTION IN LIMINE, THE FILINGS, RECORD AND LAW HAVING BEEN CONSIDERED, AND ARGUMENT OF COUNSEL FOR DEFENDANT WHO APPEARED [PLAINTIFF’S COUNSEL FAILED TO APPEAR, AS NOTED ON THE RECORD]:
IT IS HEREBY ORDERED THAT PLAINTIFF’S MOTION IN LIMINE is DENIED, at plaintiff’s costs.
Shreveport, Caddo Parish, Louisiana, this the ____ day of __________________, 2010.

________________________________
HONORABLE SCOTT CRICHTON
DISTRICT JUDGE

Prepared by,



__________________________________
David A. Szwak, LBR# 21157, TA
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400[318] 424-1400
FAX 221-6555
ATTORNEYS FOR DEFENDANT
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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