Credit Card Bills/Statements...Admissibility Issues

Administrator
Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Credit Card Bills/Statements...Admissibility Issues

Postby Administrator » Mon Sep 29, 2014 10:40 pm

1. People v. Thompson,
Not Reported in Cal.Rptr.3d, 2009 WL 4758792, Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115), Cal.App. 3 Dist., December 14, 2009 (NO. C058768)

...of what was written on the pager. But we need not decide that issue here. As we shall explain, the credit card slip information was admissible under the business records exception to the hearsay rule. Evidence Code section 1271 reads: “Evidence of a writing made as a record of an act, condition, or event......


--------------------------------------------------------------------------------

Tag to Print 2 2. Bentle v. State,
914 N.E.2d 865, 2009 WL 3270492, (Table, Text in WESTLAW), Unpublished Disposition, Ind.App., October 13, 2009 (NO. 15A01-0811-CR-550)

...Card Account Records Bentle next argues the trial court abused its discretion when it admitted the records of the three credit card accounts because the records were not properly authenticated. Records of regularly conducted business activity, although hearsay, are admissible if they were: made at or near the time [of the acts, events, or conditions to which they...

...the method or circumstances of preparation indicate a lack of trustworthiness. Ind. Evidence Rule 803(6) Extrinsic evidence of the business records' authenticity is not necessary prior to their admission so long as the custodian of the records or another qualified person certifies under oath that the records meet the requirements of the hearsay exception. Evid.R. 902(9) The Bank of America and Chase account records were accompanied by nearly identical affidavits stating that......


--------------------------------------------------------------------------------

Tag to Print 3 3. Riddle v. Unifund CCR Partners,
--- S.W.3d ----, 2009 WL 3208112, Tex.App.-El Paso, October 07, 2009 (NO. 08-07-00285-CV)

...RIDDLE, Appellant, v. UNIFUND CCR PARTNERS, Appellee. No. 08-07-00285-CV. Oct. 7, 2009. Background: Creditor that had acquired credit card debt from original creditor brought action against debtor to recover for breach of contract, on open and stated account, and...

...of Appeals, Rivera , J., held that credit cardholder agreement, telemarketing application, and account statements of original creditor were inadmissible under business records exception to hearsay rule. Reversed and remanded. West Headnotes [1] 157 Evidence 157IX Hearsay 157k 314 Nature and Admissibility 157k 314(1) k......


--------------------------------------------------------------------------------

Tag to Print 4 4. GE Money Bank v. Morales,
773 N.W.2d 533, Iowa, September 25, 2009 (NO. 08-0427)

...Oct. 27, 2009. Background: Creditor commenced a small claims action against debtor, seeking to collect outstanding balance debtor owed on credit card account. Judgment was entered against debtor, and she appealed. The District Court Woodbury County Steven J. Andreasen , J., affirmed. Debtor...

...Wiggins , J., held that: (1) verified account filed by creditor constituted creditor's “appearance” at small claims trial; (2) credit card billing statements attached to letter faxed by creditor's attorney to judge constituted hearsay; (3) credit card billing statements were not admissible under business records exception to rule against hearsay; and (4) judge's consideration of credit card billing statements at small claims trial was warranted. Affirmed West Headnotes [1] 106 Courts 106IV Courts of Limited or Inferior...

...5.801(c) [12] 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or business records in general. Credit card billing statements attached to letter faxed by creditor's attorney to judge on day of trial in small claims action creditor brought against debtor to collect outstanding balance debtor owed on credit card account, informing judge it would be appearing by its previously filed verified account, were not admissible under business records exception to rule against hearsay, as creditor's verified account failed to provide proper foundation for billing statements under this exception; creditor filed billing statements after......


--------------------------------------------------------------------------------

Tag to Print 5 5. U.S. v. Levy,
335 Fed.Appx. 324, 2009 WL 1863687, (Not Selected for publication in the Federal Reporter), C.A.4 (Va.), June 30, 2009 (NO. 08-4662)

...mail fraud and wire fraud, and she appealed. Holdings: The Court of Appeals held that: (1) records of the credit card charge-backs were admissible under the hearsay exception for business records, and (2) collection of emails from defendant's home computer was not hearsay evidence. Affirmed in part, vacated in part, and remanded. West Headnotes [1] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary...

...Registers and Records 110k 436(3) k. Particular Records. In prosecution for mail fraud and wire fraud, records of the credit card charge-backs for customers who received refunds for non-receipt of merchandise from defendant's business were admissible under the hearsay exception for business records. Fed.Rules Evid.Rules 803(6) 902(11), 28 U.S.C.A [2] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 431......


--------------------------------------------------------------------------------

Tag to Print 6 6. King v. State,
908 N.E.2d 673, Ind.App., June 30, 2009 (NO. 49A04-0810-CR-609)

...guest. Because the motel employee relied on information received from the guest in compiling the log, the record poses a hearsay problem. The essential component of the business records exception is that each actor in the chain of information is under a business duty or compulsion to provide accurate...

...on Evidence, § 290 at 274 (John William Strong, ed., 4th ed.1992) (stating that the underlying theory of the business records exception is “a practice and environment encouraging the making of accurate records. If any person in the process is not...

...fails, just as it does when the person feeding the information does not have firsthand knowledge.” In order for the business records exception to apply, Rule 803(6) requires “an informant with knowledge acting in the course of the regularly conducted activity......


--------------------------------------------------------------------------------

Tag to Print 7 7. In re DePugh,
409 B.R. 125, Bkrtcy.S.D.Tex., June 12, 2009 (NO. 08-37521-H4-13)

...by a preponderance of the evidence, it was required to do more than simply affix documents-all of which are hearsay, as no foundation has been laid under the business records exception to the hearsay rule under Fed.R.Evid. 803(6) -to its pleadings or its amended proof of claim. Indeed, the very purpose of the...

...hearing and, indeed, could not even articulate that documents existed to establish that Roundup owned the debt or that enforceable credit card agreements existed to support the accounts upon which Roundup bases its claims. [Finding of Fact No. 12.] Because there is......


--------------------------------------------------------------------------------

Tag to Print 8 8. Citibank South Dakota, NA v. Otto,
Not Reported in N.W.2d, 2008 WL 5335823, Minn.App., December 23, 2008 (NO. A08-0446)

...v. United Servs. Auto. Ass'n, 383 N.W.2d 427, 430 (Minn.App.1986) Minn. R. Evid. 803(6) sets forth the business-records exception to the hearsay rule. To qualify for the exception, the evidence must meet three requirements: (1) the evidence was “kept in the course...

...that [she] is a custodian of those books and records, and that those books and records include copies of a credit card agreement between [appellant] and [respondent]. Because Shauna Houghton is a custodian of the records of respondent, she was a qualified witness and permitted under the Minnesota Rules of Evidence to lay the requisite evidentiary foundation for the business records. Further, attached to the affidavit are appellant's monthly credit-card statements from May 2001 through February 2007. The credit-card statements are records kept by respondent in the course of a regularly conducted business activity and are made as a part of the regular practice of respondent's business activity. Therefore, the credit-card statements are admissible as business records. The district court did not abuse its discretion in admitting the affidavit of Shauna Houghton and the attachments pursuant to......


--------------------------------------------------------------------------------

Tag to Print 9 9. Alloway v. RT Capital, Inc.,
193 P.3d 713, 2008 WY 123, Wyo., October 10, 2008 (NO. S-08-0042)

...Defendant), v. RT CAPITAL, INC., Appellee (Plaintiff). No. S-08-0042. Oct. 10, 2008. Background: Collection agency brought action against credit card debtor to recover balance due. The District Court, Natrona County David B. Park , J., granted agency's summary judgment motion, and debtor appealed. Holdings: The Supreme Court, Kite , J., held that: (1) lack of original credit card agreement did not preclude summary judgment; (2) lack of any agreement between debtor and collection agency did not preclude collection; (3) credit card statements were admissible summary judgment evidence under business records hearsay exception. Affirmed West Headnotes [1] 30 Appeal and Error 30XVI Review 30XVI(F) Trial De Novo 30k 892 Trial De...

...182 Motion or Other Application 228k 185 3 Evidence and Affidavits in Particular Cases 228k 185 3(3) k. Accounting and Accounts. Credit card statements which issuer sent to collection agency were admissible summary judgment evidence under business records hearsay exception in agency's action against debtor to collect amount due, where agency's representative identified the documents and explained her relationship......


--------------------------------------------------------------------------------

Tag to Print 10 10. Cach, LLC v. Davidson,
21 Misc.3d 1106(A), 873 N.Y.S.2d 232, (Table, Text in WESTLAW), Unreported Disposition, 2008 WL 4465159, 2008 N.Y. Slip Op. 51987(U), N.Y.City Civ.Ct., September 17, 2008 (NO. 35950/07)

...the affidavit submitted by plaintiff is not based on personal knowledge of the generation and mailing to defendant of the credit card statements sufficient to satisfy the business records exception to the hearsay rule. As such, plaintiff has not made out a prima facie showing of an account stated. Without demonstrable standing to......


--------------------------------------------------------------------------------

Tag to Print 11 11. Discover Bank v. Pommell,
103 Ark. App. 96, 286 S.W.3d 735, Ark.App., September 03, 2008 (NO. CA08-54)

...k. Use in Evidence. 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or Business Records in General. 157 Evidence 157X Documentary Evidence 157X(D) Production, Authentication, and Effect 157k 369 Preliminary Evidence for Authentication 157...

...373(6) k. Proof of Copies Offered as Evidence. Affidavit by bank's account manager, and attached bank records attesting to credit card holder's alleged debt, came within hearsay exception set forth in statutory provision governing admission of photocopied records, and therefore, were admissible in bank's action to recover...

...the affidavit was file-stamped at least 14 days prior to commencement of trial, and there was no evidence that credit card holder failed to receive prompt notice of the filing of the affidavit. West's A.C.A. § 16-46-108 Southern & Allen......


--------------------------------------------------------------------------------

Tag to Print 12 12. McElroy v. Unifund CCR Partners,
Not Reported in S.W.3d, 2008 WL 4355276, Tex.App.-Hous. (14 Dist.), August 26, 2008 (NO. 14-07-00661-CV)

...MEMORANDUM OPINION WILLIAM J. BOYCE , Justice. Peggy C. McElroy appeals a judgment in favor of Unifund CCR Partners for unpaid credit card debt on grounds that (1) Unifunds business records were improperly admitted into evidence based on an affidavit from a “designated agent” rather than a custodian of records; (2) certain Unifund business records admitted into evidence contained hearsay within hearsay; (3) Unifund failed to establish the existence of a contract with McElroy; and (4) Unifund failed to establish viable claims......


--------------------------------------------------------------------------------

Tag to Print 13 13. In re Reyna,
Not Reported in B.R., 2008 WL 2961973, Bkrtcy.W.D.Tex., July 28, 2008 (NO. 08-10049-CAG)

...omitted): In the context of a bankruptcy claims proceeding, the claimant may establish a claim for liability based on a credit card agreement by attaching the agreement itself to the proof of claim. Alternatively, “an affidavit of the custodian of the creditor's...

...whose duties include having custody and control of records related to the debtor's account which purports to: (1) authenticate the credit card agreement documents and monthly statements; and (2) state the account balance due and unpaid, may be sufficient to prove the...

...purchaser bank's records may testify about the predecessor bank's records in the purchaser's possession. The attachment or filing of other business records, admissible under the hearsay exception provided in Federal Rule of Evidence 803(6) , may also, in an appropriate case, establish a debt owing to......


--------------------------------------------------------------------------------

Tag to Print 14 14. Gellatly v. Unifund CCR Partners,
Not Reported in S.W.3d, 2008 WL 2611894, Tex.App.-Hous. (1 Dist.), July 03, 2008 (NO. 01-07-00552-CV)

...assignment must prove that the debt was in fact assigned to it.” She also argued that: (1) suit on a credit card account cannot be brought as a suit on a sworn account and Unifund must produce evidence of the assignment from...

...it provided Gellatly with materials or services; (3) Unifund had not produced evidence of a valid contract; (4) the Lutz business records affidavit did not meet the predicate for the hearsay exception because Lutz is not a person with knowledge from the original lender; (5) the “affidavits attached to the original......


--------------------------------------------------------------------------------

Tag to Print 15 15. In re Taylor,
Not Reported in P.3d, 144 Wash.App. 1038, 2008 WL 6693462, Wash.App. Div. 2, May 20, 2008 (NO. 35724-1-II)

...Failure to Argue For Admission of Documentary Evidence Taylor next argues that Sergi should have sought admission of gas station credit card receipts and time slips from work to support his defense that he lacked opportunity to commit the charged offenses. This...

...going to offer the receipts and time slips, Sergi simply said that he was not. Taylor argues that the State's hearsay objection would have failed because these are business records and thereby admissible under ER 803(a)(6) He argues that Sergi's failure to know the evidence rules and failure......


--------------------------------------------------------------------------------

Tag to Print 16 16. Walls v. State,
977 So.2d 802, 33 Fla. L. Weekly D983, Fla.App. 4 Dist., April 09, 2008 (NO. 4D05-3193)

...131 (1). [3] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Affidavit of credit card holder regarding defendant's use of the card without holder's permission was not admissible, in trial for fraudulent use of a credit card, under the business records exception to the hearsay rule, as a business record of issuer of the credit card, where no witness of the issuer gave testimony as to personal knowledge of the information in the affidavit, how the...

...snatching must be reduced to petit theft. [3] In proving up the charge of grand theft by fraudulent use of credit card, the state relied on an affidavit given by the owner of the credit card as to its use without the permission of the owner. In admitting the affidavit, the court held that the affidavit qualified for admission under the business records exception to the hearsay rule. § 90.803(6), Fla. Stat (2007). This was error. [4] To secure admissibility as a business record, the......


--------------------------------------------------------------------------------

Tag to Print 17 17. In re Fruehauf Trailer Corp.,
Not Reported in B.R., 2008 WL 835693, Bkrtcy.D.Del., March 27, 2008 (NO. 96-01563 (PJW), 96-01566 (PJW), 96-01569 (PJW), 96-01564 (PJW), 96-01567 (PJW), 96-01570 (PJW), 96-01565 (PJW), 96-01568 (PJW), 96-01571 (PJW), 96-01572 (PJW), 96-01573 (PJW), 98-485)

...Cir.B.A.P.1988) In that case, involving a non-dischargeability complaint, the bank offered into evidence its statement of the debtor's credit card account. The debtor objected that (1) the bank did not satisfy the requirements of FRE 901(a) regarding authentication and (2) the statements were hearsay and they did not qualify as business records under FRE 803(6) At the trial, the debtor testified that he recognized the account statements; that he had received......


--------------------------------------------------------------------------------

Tag to Print 18 18. Martinez v. Midland Credit Management, Inc.,
250 S.W.3d 481, Tex.App.-El Paso, March 13, 2008 (NO. 08-07-00031-CV)

...or Belief of Affiant. Summary judgment affidavit submitted on behalf of credit management company, in action to recover debt from credit card holder, to which affidavit the affiant attached records showing balance due on a credit account issued to holder by the company's predecessor, did not satisfy the requirements of the business records exception to the hearsay rule and was therefore inadmissible, where the affiant did not identify the predecessor, did not provide any information concerning the......


--------------------------------------------------------------------------------

Tag to Print 19 19. State v. Sanders,
Not Reported in P.3d, 2007 WL 5290431, Ariz.App. Div. 1, December 24, 2007 (NO. 1 CA-CR 06-0596)

...not say that the trial court abused its discretion in rejecting the admission of computerized documents showing the bankrupt customer's credit card debt in the absence of foundation from a qualified witness verifying the authenticity of the records, specifically that “the retention...

...reasons, we reject defendant's argument that the trial court abused its discretion in admitting the “customer information report” under the hearsay exception for business records. ¶ 9 Moreover, even if it were error to admit defendant's “customer information record,” it was harmless error because the......


--------------------------------------------------------------------------------

Tag to Print 20 20. In re Leverett,
378 B.R. 793, Bkrtcy.E.D.Tex., December 05, 2007 (NO. 06-41439)

...transactions. In the context of a bankruptcy claims proceeding, the claimant may establish a claim for liability based on a credit card agreement by attaching the agreement itself to the proof of claim. Alternatively, “an affidavit of the custodian of the creditor's...

...whose duties include having custody and control of records related to the debtor's account which purports to: (1) authenticate the credit card agreement documents and monthly statements; and (2) state the account balance due and unpaid, may be sufficient to prove the...

...bank's records may testify about the predecessor bank's records in the purchaser's possession. Id. The attachment or filing of other business records, admissible under the hearsay exception provided in Federal Rule of Evidence 803(6) , may also, in an appropriate case, establish a debt owing to......


--------------------------------------------------------------------------------

21. Rezaie v. State,
259 S.W.3d 811, Tex.App.-Hous. (1 Dist.), November 29, 2007 (NO. 01-05-00649-CR)

...only when it acts without reference to any guiding rules and principles. [3] 110 Criminal Law 110XVII Evidence 110XVII(N) Hearsay 110k 419 Hearsay in General 110k 419(2) k. Evidence as to Fact of Making Declarations and Not as to Subject-Matter. 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Computer printout of application for credit attached to affidavit of custodian of records of bank was not hearsay in prosecution for fraudulent use of identifying information with intent to harm and defraud another; computer printout of credit application was offered to show that credit card had been applied for, application was not offered to prove either who made application or truth of statements within application......


--------------------------------------------------------------------------------

Tag to Print 22 22. Speybroeck v. State,
875 N.E.2d 813, Ind.App., November 09, 2007 (NO. 20A05-0701-CR-40)

...Writings and Publications 110k 436 Registers and Records 110k 436(3) k. Particular Records. Documents from motorcycle dealership regarding defendant's credit card application and letters to bank from defendant and his father that were certified as being made in the regular course...

...with personal knowledge of the matters set forth in the documents, and thus, the documents were not admissible under the business records exception to the hearsay rule. Rules of Evid., Rule 803(6) [8] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 431 Private......


--------------------------------------------------------------------------------

Tag to Print 23 23. Eagle Services Corp. v. Guerin,
Not Reported in So.2d, 2007 WL 3228833, 2007-0446 (La.App. 1 Cir. 11/2/07), La.App. 1 Cir., November 02, 2007 (NO. 2007 CA 0446)

...appeals the trial court's judgment in favor of Eagle Services Corporation (Eagle), the entity that claimed it had purchased her credit card account with Providian National Bank (Providian). On appeal, Guerin challenges the trial court's determinations: (1) that photocopies of the original...

...Services (Vision) and Eagle were properly admitted FN 1 in accordance with La. C.E. art. 803(6) , under the exception to hearsay exclusion rule FN 2 for the records of regularly conducted business activity; (2) that the Providian business records were duly authenticated under La. C.E. art. 901 ; and (3) that Eagle owned her Providian account because the photocopy of......


--------------------------------------------------------------------------------

Tag to Print 24 24. Hochhauser v. Electric Ins. Co.,
46 A.D.3d 174, 844 N.Y.S.2d 374, 2007 N.Y. Slip Op. 08037, N.Y.A.D. 2 Dept., October 23, 2007 (NO. 2006-03097, 47873/03, 2006-03096)

...supplier of information was not acting under a business duty to communicate accurately the assurance of accuracy that underlies the business records exception does not guarantee the truth of the information supplied even though it may have been scrupulously recorded” For instance...

...18 A.D.3d 860, 796 N.Y.S.2d 663), the court determined that a portion of a police report constituted impermissible hearsay since the eyewitness who gave a statement to the police lacked a business duty to report id. at 862, 796...

...2d 531). Again in People v. Cruz , 283 A.D.2d 295, 728 N.Y.S.2d 1, the court concluded that a credit card holder lacked a business duty to report a loss to the credit card company and, thus, the declarant's statement was not allowed into evidence id. at 295, 728 N.Y.S.2d 1). Similarly, in......


--------------------------------------------------------------------------------

Tag to Print 25 25. U.S. v. Oladapo,
228 Fed.Appx. 357, 2007 WL 1560016, (Not Selected for publication in the Federal Reporter), C.A.4 (Md.), May 30, 2007 (NO. 05-5136)

...for which she was sentenced to 60 months' imprisonment. Defendant appealed. Holdings: The Court of Appeals held that: (1) credit card statement was admissible under business records exception to hearsay rule; (2) employment attendance records of defendant's husband were admissible under business records exception to hearsay rule; (3) any error in admitting hearsay evidence was harmless; and (4) sentence was imposed absent sufficient explanation with regard to application of statutory sentencing factors...

...k. Particular Records. 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Credit card holder's handwritten note to credit card company stating that certain charges showing on her credit card account statement were not hers was admissible under business records exception to hearsay rule, in prosecution for possession of stolen mail; parties stipulated as to authenticity of document, and defense counsel was afforded opportunity to cross-examine credit card company representative. 18 U.S.C.A. § 1708 Fed.Rules Evid.Rule 803(6), 28 U.S.C.A [2] 110 Criminal Law 110XVII Evidence 110XVII(P...

...k. Particular Records. 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Employment attendance records of defendant's husband showing his opportunity to use express mail service located within his employer's facilities was admissible under business records exception to hearsay rule, in prosecution for possession of stolen mail; parties stipulated as to authenticity of documents, and defense counsel was afforded opportunity to cross-examine credit card company representative who investigated credit card fraud involving defendant's husband. 18 U.S.C.A. § 1708 Fed.Rules Evid.Rule 803(6), 28 U.S.C.A [3] 110 Criminal Law 110XXIV Review......


--------------------------------------------------------------------------------

Tag to Print 26 26. People v. Cazacu,
373 Ill.App.3d 465, 869 N.E.2d 381, 311 Ill.Dec. 707, Ill.App. 1 Dist., May 10, 2007 (NO. 1-06-0376)

...in forming his expert opinion. [1] [2] Having reviewed the entire record, we find that the Citi Bank records were business records which were arguably admissible under the hearsay exception pursuant to section 115-5 of the Illinois Code of Criminal Procedure of 1963 ( 725 ILCS 5/115-5 (West 2004)). See United States v. Peden, 556 F.2d 278, 281 (5th Cir.1977) (credit card receipts maintained by issuing company were admissible under Rule 803(6) of the Federal Rules of Evidence That said, the......


--------------------------------------------------------------------------------

Tag to Print 27 27. Unifund CCR Partners v. Mendel,
Not Reported in N.E.2d, 2007 Mass.App.Div. 38, 2007 WL 1098640, Mass.App.Div., April 10, 2007 (NO. 06-WAD-05)

...Mendel. No. 06-WAD-05. Heard Sept. 22, 2006. Opinion Certified April 10, 2007. Background: Purported assignee of separate bank credit card accounts brought two separate collection cases against debtor to recover unpaid balances of two accounts. The District Court Department Pittsfield...

...jury; and (3) assignor bank's files, which had been downloaded and scanned into assignee's computer system, were admissible under business records exception to rule against hearsay. Appeal dismissed. [1] 13 Action 13III Joinder, Splitting, Consolidation, and Severance 13k 54 Consolidation of Actions 13k 57 Actions Which...

...all the evidence. [9] 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or Business Records in General. Assignor bank's files, which had been downloaded and scanned into purported assignee's computer system, were admissible under business records exception to rule against hearsay, in collection action brought by assignee of separate bank credit card accounts against debtor to recover unpaid balances of two accounts, as records were made in good faith in the regular......


--------------------------------------------------------------------------------

Tag to Print 28 28. Petty v. Citibank (South Dakota) N.A.,
218 S.W.3d 242, 62 UCC Rep.Serv.2d 930, Tex.App.-Eastland, February 15, 2007 (NO. 11-05-00337-CV)

...Texas, Eastland. Leon PETTY, Appellant, v. CITIBANK (SOUTH DAKOTA) N.A., Appellee. No. 11-05-00337-CV. Feb. 15, 2007. Background: Credit card company brought action against credit card holder to collect on the unpaid balance on card holder's account. Card holder asserted an affirmative defense of accord and...

...appealed. Holdings: The Court of Appeals, Terry McCall , J., held that: (1) documents attached to summary judgment affidavit from credit card company's account representative were admissible as competent summary judgment evidence under the business records exception to the hearsay rule, and (2) card holder established neither a statutory nor a common law defense of accord and satisfaction. Affirmed...

...the affirmative defense. [2] 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or Business Records in General. 228 Judgment 228V On Motion or Summary Proceeding 228k 182 Motion or Other Application 228k 185 Evidence in General 228k 185(4) k. Documentary Evidence or Official Record. Documents, such as credit card holder's credit card statements and credit card policy, which were attached to summary judgment affidavit from credit card company's account representative, were admissible as competent summary judgment evidence under the business records exception to the hearsay rule, in company's action seeking payment on card holder's account; representative stated in her affidavit that the documents were true......


--------------------------------------------------------------------------------

Tag to Print 29 29. Boone v. Citibank (South Dakota) N.A.,
Not Reported in S.W.3d, 2006 WL 3742802, Tex.App.-Beaumont, December 21, 2006 (NO. 09-05-135 CV)

...we will construe these issues as such. Business Record Affidavit Boone argues the trial court improperly admitted into evidence Boone's credit card statements, credit card agreements, and certain payments Boone made on the accounts because Citibank relied upon an inadequate business records affidavit. Boone alleges several defects in the form of the business records affidavit, including the fact that the affiant does not state he has personal knowledge with regard to the credit card accounts at issue, and neither the affidavit nor the pleadings establish certain elements of Citibank's breach of contract claim.FN 2 Boone further argues the affidavit does not meet the hearsay exception under Tex.R. Evid. 803(6) Boone did not present these complaints to the trial court by lodging an objection when the affidavit and accompanying exhibits were admitted into evidence. Thus, Boone has waived any objection to Citibank's business records affidavit and to the exhibits admitted into evidence. See Tex.R.App. P. 33.1(a) [ FN2.] Boone contends these defects are...

...case was tried to the trial court. Even if error had been preserved, the affidavit was sufficient to support the business records hearsay exception. The affiant, who was an employee of Citicorp Credit Services, Inc. (USA), Citibank's authorized agent and servicer, testified as to the following relevant information regarding the attached credit card records: I am one of the custodians of records for Plaintiff [Citibank], and my duties include having custody and control......


--------------------------------------------------------------------------------

Tag to Print 30 30. In re Mitchell,
357 B.R. 142, Bkrtcy.C.D.Cal., December 05, 2006 (NO. LA06-11892ER)

...C) Voluntary Cases 51k 2259 Dismissal 51k 2264 Proceedings; Motion or Sua Sponte Action 51k 2264(1) k. In General. Credit card company's records containing debtor's false statements about her employment status were admissible under business records exception to hearsay rule in proceedings on motion by United States Trustee (UST) to dismiss debtor's bankruptcy petition for abuse of Chapter 7......


--------------------------------------------------------------------------------

Tag to Print 31 31. Tickanen v. Harris & Harris, Ltd.,
461 F.Supp.2d 863, E.D.Wis., October 20, 2006 (NO. 05 CV 935)

...Breach, Enforcement, and Contest 25Tk 204 Remedies and Proceedings for Enforcement in General 25Tk 210 k. Evidence. 157 Evidence 157IX Hearsay 157k 315 Statements by Persons Other Than Parties or Witnesses 157k 318 Writings 157k 318(7) k. Certificates and Affidavits. Affidavit submitted by credit card company's senior manager of recovery in support of company's motion to compel arbitration was admissible in customers' action alleging that...

...violated Fair Debt Collection Practices Act (FDCPA), despite customers' contention that affidavit was not based on personal knowledge and constituted hearsay, where it was manager's duty to research account histories of credit card holders, company regularly made and kept business records in course of regularly conducted activity, and copies of agreements and notices in question were attached to affidavit. Consumer Credit......


--------------------------------------------------------------------------------

Tag to Print 32 32. LDC General Contracting v. LeBlanc,
907 A.2d 802, 2006 ME 106, Me., August 29, 2006 (NO. YOR-05-593)

...Evid., Rule 1006 [7] 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or Business Records in General. Neither summary pages showing former employee's allegedly inappropriate credit card charges nor attachments with highlighting by employee who was compiling list of inappropriate charges were admissible under business-records exception to hearsay rule in former employer's action for money owed, unjust enrichment, conversion, and fraud; employee's highlighting was done long after events......


--------------------------------------------------------------------------------

Tag to Print 33 33. Seidner v. Citibank (South Dakota) N.A.,
201 S.W.3d 332, Tex.App.-Hous. (14 Dist.), August 24, 2006 (NO. 14-05-01096-CV)

...renewal or substitution. Citibank responded with an affidavit by Terri Ryning, in which she identified certain attached documents as Citibank's business records. See Tex.R. Evid. 803(6) (business records exception to the hearsay rule).FN 1 She further stated that the records reflected that Seidner applied for the credit card account over the telephone. Citibank additionally responded by arguing that a violation of section 1642 is not an affirmative defense barring a lawsuit to recover on credit card debt. [ FN1.] In the affidavit, Ryning stated that she is a vice president of Citicorp Credit Services, Inc., which is......


--------------------------------------------------------------------------------

Tag to Print 34 34. Capital One Bank v. Hardin,
178 S.W.3d 565, Mo.App. W.D., September 13, 2005 (NO. WD64440)

...albeit with considerable difficulty. Hardin did not object to the admission of Exhibits 1, 2, 4, 5, or 6 as business records of Capital One. However, he did object to the admission of Exhibit 3 on the ground of relevance, arguing that it was dated some two years after Capital One issued his credit card. The trial court sustained the objection, noting that Capital One was free to attempt to lay a proper foundation for...

...and default, et cetera,” it was “virtually identical to the account agreement” in effect in 2000, when Hardin opened his credit card account. The only difference between the two, Napolitano testified, was the addition of an arbitration clause in October 2001, which...

...copy of either the 2000 or 2002 Customer Agreements as part of the documents he received when he opened his credit card account with Capital One. The trial court then stated that it would defer ruling on Hardin's renewed objection until it......


--------------------------------------------------------------------------------

Tag to Print 35 35. Discover Bank v. Poling,
Not Reported in N.E.2d, 2005 WL 737404, 2005 -Ohio- 1543, Ohio App. 10 Dist., March 31, 2005 (NO. 04AP-1117)

...trial court's jurisdiction. [3] 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or Business Records in General. 157 Evidence 157X Documentary Evidence 157X(D) Production, Authentication, and Effect 157k 369 Preliminary Evidence for Authentication 157k 373 Form and Sufficiency in General 157k 373(1) k. In General. Testimony by employee of credit card issuer's servicing agent was sufficient to authenticate credit card application, cardmember agreement, billing statements and payments as business records, and thus such records were not hearsay in issuer's action against alleged credit card debtor to recover the outstanding balance due on the credit card account; employee testified that he was team leader of department that handled delinquent accounts, and that documents at issue were......


--------------------------------------------------------------------------------

Tag to Print 36 36. U.S. v. Zapata,
356 F.Supp.2d 323, 66 Fed. R. Evid. Serv. 531, S.D.N.Y., February 10, 2005 (NO. 02 CR. 1545 (VM))

...admissibility of Western Union wire transfer records, it has decided cases dealing with the problem of admitting evidence under the business records exception to the hearsay rule where the source of at least part of the information in the record was not acting in the regular...

...hotel employee. Id. at 100. The Circuit Court held that the hotel guest card would not be admissible under the business records exception to prove the identity of the guest “unless the employee were able in some way to verify the information provided for example, by examining a credit card, driver's license or other form of identification By the same token, however, if such verification is obtained by the employee...

...the person who filled out the guest registration card, the court held that the card was not admissible under the business records exception. Id.; see United States v. Reyes, 157 F.3d 949, 951-53 (2d Cir.1998) (following Lieberman and admitting a prison logbook under the business records exception because the prison required every visitor to produce identification when signing into the book). The Circuit, however, upheld the......


--------------------------------------------------------------------------------

Tag to Print 37 37. People v. Percelle,
126 Cal.App.4th 164, 23 Cal.Rptr.3d 731, 05 Cal. Daily Op. Serv. 915, 2005 Daily Journal D.A.R. 1259, Cal.App. 6 Dist., January 31, 2005 (NO. H026115)

...altered, stolen, or counterfeit access card, any error was harmless in failing to establish foundation for admitting exhibit of victim's credit card receipts under business records exception to hearsay rule; in light of strong evidence of defendant's guilt, it was not reasonably probable that the result would have been......


--------------------------------------------------------------------------------

Tag to Print 38 38. In re Cluff,
313 B.R. 323, Bkrtcy.D.Utah, August 23, 2004 (NO. 03-32779, 03-39152)

...Bank v. Denslow (In re Denslow), 104 B.R. 761, 765-67 (E.D.Va.1989) (affirming trial court's admission of computer prepared credit card statements under the business records exception to the hearsay rule). Computer print-outs reflecting stored data may qualify as a business record. Russell, Bankruptcy Evidence Manual 2003 Ed., §......


--------------------------------------------------------------------------------

Tag to Print 39 39. Powell v. Vavro, McDonald, and Associates, L.L.C.,
136 S.W.3d 762, Tex.App.-Dallas, June 16, 2004 (NO. 05-03-00491-CV)

...of Appeals, Lang-Miers , J., held that: (1) statements in affidavit of travel company's customer service manager that consumers' credit card account was credited the amount consumers paid for travel package were based on hearsay, not personal knowledge, and thus were not admissible summary judgment evidence, and (2) documents that purportedly came from credit card processing company did not satisfy business-records exception to hearsay rule. Reversed and remanded. West Headnotes [1] 228 Judgment 228V On Motion or Summary Proceeding 228k 182 Motion or Other...

...Rule 801(d) [3] 157 Evidence 157X Documentary Evidence 157X(C) Private Writings and Publications 157k 351 k. Unofficial or Business Records in General. 157 Evidence 157X Documentary Evidence 157X(D) Production, Authentication, and Effect 157k 369 Preliminary Evidence for Authentication 157...

...Application 228k 185 Evidence in General 228k 185(4) k. Documentary Evidence or Official Record. Documents that purportedly came from credit card processing company and that purportedly showed that refund was applied to consumers' credit card account did not satisfy business-records exception to hearsay rule, and thus documents, which were attached to summary judgment affidavit of travel company's customer service manager, were not admissible......


--------------------------------------------------------------------------------

Tag to Print 40 40. C & W Asset Acquisition, LLC v. Somogyi,
136 S.W.3d 134, Mo.App. S.D., May 26, 2004 (NO. 25764)

...26, 2004. Background: Assignee of creditor card company brought action against cardholder to collect amount alleged to be due on credit card account. At the close of assignee's case during bench trial, the Circuit Court of Camden County Bruce E. Colyer , Associate...

...Nancy Steffen Rahmeyer , C.J., held that: (1) records sought to be introduced by assignee were not admissible under the business records exception to the hearsay rule; (2) records assignee sought to introduce did not establish it had right to enforce credit agreement; and...

...373 Form and Sufficiency in General 157k 373(1) k. In General. Records sought to be introduced by assignee of credit card company in action against cardholder for balance allegedly due on credit card account were not admissible under the business records exception to the hearsay rule, though affidavit submitted by records custodian of assignee complied with statutory requirements for such an affidavit, where assignee's records custodian could not attest to the identity and mode of preparation of business records created by credit card company, custodian did not provide evidence as to where such records came from or any indication as to who authored......


--------------------------------------------------------------------------------

41. Time Warner Entertainment/Advance Newhouse Partnership v. Sherman,
87 Fed.Appx. 774, 2004 WL 260642, (Not Selected for publication in the Federal Reporter), C.A.2 (N.Y.), February 12, 2004 (NO. 02-7417)

...J., entered judgment in favor of company, and individual appealed. Holdings: The Court of Appeals held that: (1) individuals's credit card statements were admissible under business records exception to hearsay rule, and (2) use of vendor's sales records did not violate financial privacy provisions of Gramm-Leach-Bliley Act...

...C) Private Writings and Publications 157k 355 Private Memoranda and Statements in General 157k 355(2) k. Statements of Account. Credit card statements were admissible in cable television company's action alleging that individual bought and used illegal descrambling devices under business records exception to hearsay rule, even though they were business records of credit card companies from which they were subpoenaed, rather than of vendors that sold descrambling equipment. Fed.Rules Evid.Rule 803(6), 28 U.S.C.A...

...that the district court erred in admitting some of plaintiff's evidence at trial. We disagree. First, Sherman argues that various credit card statements that were introduced and then used to authenticate the invoices for the purchase of the descrambling equipment were inadmissible, because these statements did not meet the business records exception to the hearsay rule. Because Sherman concedes in her brief on appeal that she “failed to object in court” when these records were......


--------------------------------------------------------------------------------

Tag to Print 42 42. Norfolk Financial Corp. v. MacDonald,
Not Reported in N.E.2d, 2003 Mass.App.Div. 153, 2003 WL 22251311, Mass.App.Div., September 25, 2003 (NO. 9843)

...of Lechmere/Hurley State Bank, nor did he have first-hand knowledge of the credit account in question. [1] The credit card account statements obtained by Norfolk from Lechmere are, however, admissible under G.L. c. 233, § 78 , the Business Records Act. By that statute, a business record is a record made in the regular course of business and prepared by a person responsible for making accurate entries.FN 2 Business records are allowed because of their “presumed reliability.” Commonwealth v. LaPlante, 416 Mass. 433, 442, 622 N.E.2d 1357 (1993) For...

...reported to the preparer as a matter of business duty, or that it falls into a separate exception to the hearsay rule. Irwin v. Ware, 392 Mass. 745, 749, 467 N.E.2d 1292 (1984) Wingate v. Emery Air Freight Corp., 385......


--------------------------------------------------------------------------------

Tag to Print 43 43. In re Delric H.,
150 Md.App. 234, 819 A.2d 1117, Md.App., March 27, 2003 (NO. 2027 SEPT.TERM 2001)

...bills for medical services and treatment and medication, all of which had been paid by the victim's father by check, credit card, or cash.FN 3 Counsel for Delric made a timely objection to admission of the bills on the grounds that all of the exhibits constituted hearsay, and further, that they were not properly authenticated business records as required by Md. Rules 5-803(b)(6) 5-901 , and 5-902 [ FN3.] Exhibits 1 through 8, and......


--------------------------------------------------------------------------------

Tag to Print 44 44. Dunn v. Cockrell,
Not Reported in F.Supp.2d, 2002 WL 240186, N.D.Tex., February 14, 2002 (NO. 3-00-CV-2102-P)

...tapes maintained by the store. (SF-XIII 1046). It is apparent from this testimony that the state properly authenticated the credit card receipts from Borders and Tom Thumb. See TEX. R. CRIM. EVID. 901(a) now codified as TEX. R. EVID. 901...

...claims.” Consequently, there was no basis for counsel to object on this ground. Nor was counsel required to make a hearsay objection. These receipts undoubtedly were admissible under the business records exception to the hearsay rule. See TEX. R. CRIM. EVID. 803(6) now codified as TEX. R. EVID. 803(6) (records of regularly conducted business activity not hearsay). Absent evidence that the credit card receipts do not qualify as business records, petitioner cannot show that counsel was ineffective for failing to make a hearsay objection. 5. In two grounds for relief, petitioner argues that his attorney elicited evidence from three witnesses on cross-examination......


--------------------------------------------------------------------------------

Tag to Print 45 45. Featherston v. State,
849 So.2d 209, Ala.Crim.App., September 28, 2001 (NO. CR-98-0687)

...Amendment right to confront witnesses. The Fifth Circuit determined that the cardholders' affidavits and letters were not admissible under the business records exception: “The cardholders' statements do not qualify as business records of the cardholders because the business records exception ‘applies only if the person who makes the statement “is himself acting in the regular course of business.” Rock...

...regular course of business for credit cardholders to fill out affidavits or otherwise give information to their banks regarding stolen credit cards. See United States v. Davis, 571 F.2d 1354, 1359 (5th Cir.1978) “Second the statements are not admissible as business records of the issuing banks because of the double hearsay involved. ‘Double hearsay exists when a business record is prepared by one employee from information supplied by another employee. If both the source...

...as every other participant in the chain producing the record, are acting in the regular course of business, the multiple hearsay is excused by Rule 803(6) However, if the source of the information is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record. The outsider's statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course......


--------------------------------------------------------------------------------

Tag to Print 46 46. People v. Cruz,
283 A.D.2d 295, 728 N.Y.S.2d 1, 2001 N.Y. Slip Op. 04548, N.Y.A.D. 1 Dept., May 22, 2001 (NO. 3813)

...of criminal possession of stolen property in the fifth degree. Defendant appealed. The Supreme Court, Appellate Division, held that: (1) business records exception to hearsay rule did not apply to allow admission of bank record reporting loss of stolen credit cards, and (2) admission of such record required reversal of conviction for possession of stolen property. Affirmed as modified. West Headnotes...

...P) Documentary Evidence 110k 431 Private Writings and Publications 110k 436 Registers and Records 110k 436(3) k. Particular Records. Business records exception to hearsay rule did not apply to allow admission of bank record reporting loss of stolen credit cards in prosecution for criminal possession of stolen property; owner of credit cards had no business duty to make report. [2] 110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110...

...counts, and otherwise affirmed. [1] [2] The trial court improperly admitted the bank record reporting the loss of the subject credit cards into evidence. Since the owner of the credit cards had no business duty to make the report, the business records exception to the hearsay rule did not apply. Defendant's conviction on the criminal possession of stolen property counts must therefore be reversed since it was based on this inadmissible hearsay People v. Edmonds, 251 A.D.2d 197, 674 N.Y.S.2d 361, lv. denied 92 N.Y.2d 924, 680 N.Y.S.2d......


--------------------------------------------------------------------------------

Tag to Print 47 47. Dowdell v. State,
790 So.2d 359, Ala.Crim.App., December 22, 2000 (NO. CR-99-2188)

...was convicted in the Lee Circuit Court, No. CC-1999-872, Jacob A. Walker III , J., of fraudulent use of credit card or debit card. Defendant appealed. The Court of Criminal Appeals, Fry , J., held that: (1) record showing victim's debit-card-transaction history was admissible under business records exception to hearsay rule, and (2) state established prima facie case. Affirmed Baschab , J., concurred in result. West Headnotes [1] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Record showing victim's debit-card-transaction history was admissible under business records exception to hearsay rule in prosecution for fraudulent use of credit card or debit card, even though supervisor who printed computer-generated record did not testify; electronic services assistant at bank testified......


--------------------------------------------------------------------------------

Tag to Print 48 48. U.S. v. Turnbull,
213 F.3d 634, 2000 WL 524800, (Table, Text in WESTLAW), Unpublished Disposition, C.A.4 (Va.), May 02, 2000 (NO. 98-4532, 98-4583)

...9J, 9Z, 9EE, 9FF, 9II, 10B, 10Z, 10BB, and 10DD. The Western Union money transfer documents at issue are clearly hearsay because they were offered by the Government to show that Turnbull laundered the proceeds of the conspiracy's drug sales by...

...687, 701 (10th Cir.1993) These money transfer documents are therefore inadmissible unless they fall within an exception to the hearsay rule. The district court admitted the records under Federal Rule of Evidence 803(6) , which allows admission of business records “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Fed.R.Evid. 803(6) When...

...verification may be demonstrated by “(1) proof that the business has a policy of verifying patrons' identities by examining their credit cards, driver's licenses, or other forms of identification; or (2) proof that the business possesses a sufficient self-interest in the......


--------------------------------------------------------------------------------

Tag to Print 49 49. First of America Bank v. Woodward Mini Mall,
Not Reported in N.W.2d, 1999 WL 33436095, Mich.App., August 31, 1999 (NO. 207555)

...abused its discretion in admitting into evidence plaintiff's exhibit, which was a spreadsheet created by plaintiff's employee that listed the credit card charge backs that were electronically received by plaintiff from issuing banks. Over defendants' hearsay objection, the trial court admitted the exhibit pursuant to the business records exception to the hearsay rule, MRE 803(6) Defendants assert that, because the initial source of the information in the spreadsheet came from credit card holders, whose veracity in initiating the charge backs was not subject to confirmation through cross-examination or otherwise, the information......


--------------------------------------------------------------------------------

Tag to Print 50 50. Sims v. Singletary,
Not Reported in F.Supp., 1997 WL 33330960, M.D.Fla., August 22, 1997 (NO. 93-1055CIVORL22)

...Fla.1983) During the direct examination of Joyce Gray, the common law wife of Curtis Baldree, the defense offered two credit card receipts and an account balance sheet from her doctor. The trial court sustained the State's objection to the documents. Petitioner...

...the items into evidence impeded his defense and deprived him of a fair trial. Respondent argues that the items were business records and subject to a hearsay objection since the proper predicate was not laid. Generally, courts do not review a state trial court's admission of evidence......


--------------------------------------------------------------------------------

Tag to Print 51 51. Air Land Forwarders, Inc. v. U.S.,
38 Fed.Cl. 547, Fed.Cl., August 07, 1997 (NO. 91-938C, 91-933C, 91-934C, 91-929C, 91-930C, 91-926C, 91-927C, 91-924C, 91-940C)

...469 U.S. 1213, 105 S.Ct. 1184, 84 L.Ed.2d 331 (1985) [16] The remaining documents at issue (DD Forms, estimates, credit card statement and insurance documents) comprise admissible hearsay pursuant to the Rule 803(6) category. The Army and Air Force expected-and the regulations permitted-service members to...

...claims files and use of documents at issue); Tr. at 420-424 (Air Force witness engages in similar discussion). These business records have the requisite assurance as to reliability because a service member can be fined and imprisoned for presenting a false......


--------------------------------------------------------------------------------

Tag to Print 52 52. State v. Hager,
691 A.2d 1191, Me., December 20, 1996 (NO. ARO-95-477)

...West Headnotes [1] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Credit union's administrative assistant was “qualified witness” to support introduction of copies of defendant's credit card receipts in prosecution for theft by deception, pursuant to business record exception to hearsay rule; witness' testimony disclosed that she was intimately involved in operations of credit union, with personal knowledge of how credit card receipts were kept and procedure for obtaining copies of credit card receipts. Rules of Evid., Rule 803(6) [2] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 431 Private...

...k. Particular Records. 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 444 Authentication and Foundation 110k 444 9 k. Business Records; Books of Entry. (Formerly 110k444 Copies of defendant's credit card receipts were admissible in prosecution for theft by deception under business record exception to hearsay rule; testimony demonstrated that credit card receipts were obtained in course of credit union's regularly conducted banking business and that it was regular practice of credit......


--------------------------------------------------------------------------------

Tag to Print 53 53. U.S. v. Ismoila,
100 F.3d 380, 65 USLW 2356, 45 Fed. R. Evid. Serv. 581, C.A.5 (Tex.), November 13, 1996 (NO. 93-2486, 95-20171)

...Writings and Publications 110k 436 Registers and Records 110k 436(3) k. Particular records. Affidavits and other statements prepared by credit card holders, indicating that their credit cards had been stolen and that they had not authorized certain charges made by defendants in furtherance of scheme to defraud participating banks, were not admissible under business records exception to hearsay rule, on theory that these affidavits and other statements were business records of credit card holders themselves; government failed to establish that it was in regular course of business for credit card holders to fill out affidavits or otherwise give information to their banks regarding stolen credit cards. Fed.Rules Evid.Rule 803(6), 28 U.S.C.A [26] 110 Criminal Law 110XVII Evidence 110XVII(P) Documentary Evidence 110k 431 Private Writings...

...Writings and Publications 110k 436 Registers and Records 110k 436(3) k. Particular records. Affidavits and other statements prepared by credit card holders, indicating that their credit cards had been stolen and that they had not authorized certain charges made by defendants in furtherance of alleged scheme to defraud, were not admissible under business records exception to hearsay rule, as business records of issuing banks; while it may have been in regular course of business for issuing bank to keep such statements......


--------------------------------------------------------------------------------

Tag to Print 54 54. Jefferson v. Commonwealth,
Not Reported in S.E.2d, 1995 WL 653350, Va.App., November 07, 1995 (NO. 0830-94-2)

...010 this opinion is not designated for publication. COLEMAN , Judge. Timothy Barron Jefferson was convicted in a jury trial of credit card theft, Code § 18.2-192 , and credit card fraud, Code § 18.2-195 Jefferson contends that the trial court erred by admitting into evidence the victim's bank credit card statement and a letter from the bank to the victim containing the personal identification number (PIN) for the credit card. Specifically, he argues that the documents are hearsay and do not fall within the business records exception. We agree and reverse the convictions. In mid-August of 1993, Elgin Myers experienced an interruption in mail service...

...Commonwealth contends, relying upon Walters v. Littleton, 223 Va. 446, 450, 290 S.E.2d 839, 841 (1982) , that both the credit card statement and the PIN letter were offered for the non-hearsay purpose of proving that the victim, Elgin Myers, had received them. Alternatively, the Commonwealth argues that they were admissible under the business records exception to the hearsay rule. The Commonwealth's reliance on Walters v. Littleton is misplaced. In Walters, the Supreme Court held that the trial court...

...procedure for creating the record or document provides an indicia of trustworthiness and reliability that is the hallmark for admitting hearsay under the business records exception. See Ford Motor Co. v. Phelps, 239 Va. 272, 276, 389 S.E.2d 454, 457 (1990) (stating that “[t]he......


--------------------------------------------------------------------------------

Tag to Print 55 55. Wern v. D'Alessandro,
219 A.D.2d 646, 631 N.Y.S.2d 425, N.Y.A.D. 2 Dept., September 18, 1995 (NO. 94-01255)

...157k 355 Private Memoranda and Statements in General 157k 355(1) k. In General. Trial court erred by admitting, under business records exception to hearsay rule, credit card receipts and copies of airline tickets that defendant doctor submitted in medical malpractice action to show that he was out...

...The hearing court allowed all of the doctor's documentation into evidence. [2] Although some of the doctor's documentation, such as credit card receipts and copies of the airline tickets, were improperly admitted under the business records exception to the hearsay rule ( CPLR 4518[a] ) see generally, Insurance Co. of N. Am. v. Gottlieb, 186 A.D.2d 470, 588 N.Y.S.2d......


--------------------------------------------------------------------------------

Tag to Print 56 56. U.S. v. Pendergrass,
47 F.3d 1166, 1995 WL 56673, (Table, Text in WESTLAW), Unpublished Disposition, C.A.4 (S.C.), February 07, 1995 (NO. 93-5423, 93-5425, 93-5738, 93-5422)

...on these records supplied by a Western Union employee-the time of the transaction, etc.-is clearly admissible under the business records exception. The problem arises with regard to the information supplied by outside sources. “If any person in the process is...

...information in the business record is an outsider, the only way to save the record from the jaws of the hearsay exclusion is to establish that the business recipient took precautions to guarantee the accuracy of the given information. McIntyre, 997...

...Thus, Western Union must have been “able in some way to verify the information provided-for example, by examining a credit card, driver's license or other form of identification.” United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980) As......


--------------------------------------------------------------------------------

Tag to Print 57 57. Huff v. State,
897 S.W.2d 829, Tex.App.-Dallas, February 02, 1995 (NO. 05-93-01870-CR)

...bookkeeper was harmless; (6) copies of petty cash checks allegedly stolen by bookkeeper, as well as her bank records and credit card bills, fell under business records exception to hearsay rule and satisfied indicia of reliability requirement for admission under Confrontation Clause; and (7) for Confrontation Clause purposes, party need not show declarant's unavailability prior to having business records introduced and admitted at trial. Affirmed West Headnotes [1] 234 Larceny 234II Prosecution and Punishment 234II(A) Indictment and Information...

...and Publications 110k 436 Registers and Records 110k 436(3) k. Particular Records. Bank deposit slips, checks, bank records and credit card statements fell within business records exception to hearsay rule; branch manager for bank and assistant custodian of records and account services supervisor for credit card company testified that they were familiar with daily record-keeping procedures at their respective companies, that such records were kept...

...k. Use of Documentary Evidence. Petty cash checks allegedly stolen by company bookkeeper, as well as bookkeeper's bank records and credit card bills, had sufficient indicia of reliability for admission into evidence over Confrontation Clause challenge; records fell within business records exception to hearsay rule, were purely factual in nature, and were made by entities with interest in keeping records accurate. U.S.C.A. Const.Amend. 6......


--------------------------------------------------------------------------------

Tag to Print 58 58. U.S. v. Cestnik,
36 F.3d 904, 41 Fed. R. Evid. Serv. 255, C.A.10 (Wyo.), September 28, 1994 (NO. 93-8016)

...forms involve transfers of less than $10,000. [3] [4] We agree that the senders' names were not admissible under the business records exception to the hearsay rule. As this court explained in United States v. McIntyre, 997 F.2d 687 (10th Cir.1993) cert. denied 510...

...demonstrate this “guarantee[ ] of trustworthiness”: (1) proof that the business has a policy of verifying patrons' identities by examining their credit cards, driver's licenses, or other forms of identification; or (2) proof that the business possesses “a sufficient self-interest in the......


--------------------------------------------------------------------------------

Tag to Print 59 59. U.S. v. Goodchild,
25 F.3d 55, 40 Fed. R. Evid. Serv. 1166, C.A.1 (N.H.), June 08, 1994 (NO. 94-1097)

...Records 110k 436(6) k. Computer Records; Printouts. Computer printouts of collection memos containing records of telephone statements made to credit card company's collection personnel were admissible under business records exception to hearsay rule in prosecution of defendant f
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

Return to “Evidentiary Issues in FCRA Cases”

Who is online

Users browsing this forum: No registered users and 3 guests