Credit Reports and Hearsay

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Credit Reports and Hearsay

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King v. Arkansas Children's Hosp.,
Slip Copy, 2006 WL 2786971, E.D.Ark., September 27, 2006 (No. 4:05-CV-1356 GTE.)

In support of its argument for summary judgment on the defamation claim, Defendant asserts that Plaintiff's statement that a woman named Billie Redd told Plaintiff that she heard Plaintiff had flashed Webb is hearsay, barred by Fed.R.Evid. 801 and 802. Defendant states, “Clearly the truth of the matter asserted is what Redd allegedly heard, not the act itself. Without admissible testimony by Redd, summary judgment is proper for that reason alone.” In Wal-Mart Stores, Inc. v. Dolph, 308 Ark. 439, 443, 825 S.W.2d 810, 812 (1992), the Arkansas Supreme Court directly addressed this issue and found that the testimony was not hearsay. There, the plaintiff testified that her sister's mother-in-law had been told by one of the Wal-Mart employees that the plaintiff had been caught shoplifting. Id. The Court found that the testimony was not offered to prove the truth of what was said, but to prove the fact that it was said, which then became some evidence of publication, and therefore, the testimony was not hearsay. Id. (citing Luster v. Retail Credit Company, 575 F.2d 609 (8th Cir.1978) (affirming the trial court's rejection of Defendant's hearsay objection when plaintiff used the testimony of a third-party insurance agent who heard from a deceased agent that an insurance firm believed that the credit report supplied by defendant implied arson to prove publication because the trial court gave a limiting instruction and the testimony was admitted solely to prove the fact that the words were said, not to prove that they were true). See also United Ins. Co. of America v. Murphy, 331 Ark. 364, 373-74, 961 S.W.2d 752, 758 (1998) (declining to overrule Wal-Mart Stores, Inc. v. Dolph ) (affirming the trial court's ruling allowing plaintiff's witnesses to testify that persons not called at trial said that Burcham said that the plaintiff was a thief). Based upon the prior rulings of the Arkansas Supreme Court and the Eighth Circuit, summary judgment may not be granted on Plaintiff's slander claim on the basis of hearsay.


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People v. Nguyen
Not Reported in Cal.Rptr.3d, 2006 WL 302420
Cal.App. 4 Dist.,2006.
February 09, 2006

Admission of Hu's Hearsay Testimony

In connection with the charge of using Hu's personal identifying information (count 3), the prosecutor elicited Hu's testimony that she became aware of the theft of her personal information when American Express called her about her bad credit. She testified that she then requested a credit report, which showed fraudulent use of credit cards in her name totaling approximately $45,000. Nguyen's counsel objected, unsuccessfully, to the admission of testimony regarding the contents of the credit report on hearsay grounds. After Hu testified that, in calling the credit card companies to close the unauthorized accounts opened in her name, she discovered that the address for the Capital One account was Nguyen's address, defense counsel again raised a hearsay objection and moved to strike this testimony, but the court denied his request.

Thereafter, Nguyen made a motion for a mistrial based on the admission of the evidence, arguing that the evidence was hearsay, that she did not have the ability to cross-examine the credit card company representatives who made the statements to Hu and that the evidence included an improper opinion that she was the person who fraudulently used the card. The trial court denied Nguyen's motion, but held an evidentiary hearing about whether Hu had any personal knowledge regarding the information to which she had testified; upon determining that Hu did not have such personal knowledge, the court promptly instructed the jury that her testimony regarding the amount of outstanding credit card debt and regarding Nguyen's involvement with the Capital One credit card were only admitted for the purpose of establishing the effect such information had on her, not to establish the truth of that testimony.

*3 On appeal, Nguyen argues that the admission of Chen's testimony about the Capital One representative's statements to her violated her constitutional right to confront the witnesses against her. The Attorney General responds that (1) Nguyen has waived this contention by failing to specifically object to the admission of the evidence on Confrontation Clause grounds below, (2) the Confrontation Clause is not implicated because the court admitted the evidence for a nonhearsay purpose, and (3) any error in admitting the evidence was not prejudicial.

Because Nguyen argued to the trial court that she did not have the opportunity to cross-examine the credit card company representative about whose statements Hu was testifying, we reject the Attorney General's waiver argument. (See Evid.Code, § 353, subd. (a).) We also reject the argument that the trial court properly admitted the testimony for a nonhearsay purpose because the effect that the information had on Hu was simply irrelevant to any issues raised by the charges against Nguyen. (See People v. Hernandez (2003) 30 Cal.4th 835, 872.)

We agree, however, that the court's error in admitting the evidence was not prejudicial. At trial, the prosecution relied solely on Nguyen's use of the Discover card and the Bank One Visa card in Hu's name, rather than on Nguyen's use of the Capital One credit card, as the basis for count 3. The evidence at trial was uncontroverted that both the Discover card and the Bank One Visa card were opened in Hu's name, using addresses that were identical or substantially similar to Nguyen's California and Texas addresses, despite the fact that Hu did not live at either address at the time the accounts were opened. Further, the evidence unequivocally showed that Nguyen had not only the Discover card and the Bank One Visa card, but also receipts from the use of those cards, in her possession when she was detained by the Home Depot security agents.

In light of the strength of this evidence, the trial court's erroneous admission of Hu's statements that the Capital One representative told her Nguyen had also used her own address to open that credit card account and had made payments on that account was simply inconsequential and does not support a reversal of Nguyen's conviction on count 3.


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Baker v. Capital One Bank
Not Reported in F.Supp.2d, 2006 WL 173668
D.Ariz.,2006.
January 24, 2006

A. Evidentiary Issues

“It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.” Beyene v. Coleman Sec. Servs., 854 F.2d 1179, 1181 (9th Cir.1988). Baker's evidence consists of various exhibits and an affidavit. (Response at “Exhibits K” at K-1 through K-8; doc. # 68 or # 69.) The exhibits appear predominantly to be portions of Baker's personal credit reports or responses to inquiries made of credit reporting agencies, and the affidavit relates information obtained by Baker from credit reporting agencies while investigating the claims underlying her Complaint. ( See doc. # s 68 or # 69, 70 .) Retailers first objects to Baker's exhibits on the ground that they are unauthenticated.

*6 Baker's exhibits are properly authenticated. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). Testimony of a witness with knowledge that a matter is what it is claimed to be satifies this requirement. Fed.R.Evid. 901(b)(1). Baker submits an affidavit stating that “All my exhibits are true copies of documents received from the [Credit Reporting Agencies].” (doc. # 70 at ¶ 8.) Baker's affidavit testimony satisfies the requirement of authentication for these exhibits to be admitted as reports received from credit reporting agencies.

Retailers next objects to Baker's exhibits and affidavit on the ground that they are hearsay. Hearsay is an out-of-court assertion offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c); Beyene, 854 F.2d at 1182.

Baker offers her exhibits into evidence for the truth of statements made in them. For example, Exhibit K-2-apparently part of an Experian credit report-states with respect to Baker's Target account that “This item was verified on 11-2002 and remained un[changed].” (Response at Exh. K-2 at 1.) Baker submits this document as proof that Retailers verified $157 as Baker's credit limit instead of $200. (doc. # 70 at ¶ 2). Exhibit K-2 is thus offered to prove the truth of the matter asserted in it, and is hearsay. See Capital Funding v. Chase Manhattan Bank, 2005 U.S. Dist LEXIS 2212, no. 01-6093, *6 (E.D.Pa. Feb. 11, 2005) (affirming exclusion of credit reports as hearsay).

Exhibits K-1 and K-3 through K-5 are similarly introduced for the purpose of proving that Retailers verified reported amounts, which is the matter asserted in statements in those documents. ( See doc. # 68 or # 69 at K-1, K-3, K-4, K-5; doc. # 70 at ¶¶ 2-3; doc. # 71 at ¶¶ 10, 12.) These exhibits are therefore also hearsay.

Some of Baker's affidavit testimony, moreover, is hearsay. For example, Baker's affidavit testimony relates conversations she had with employees of credit reporting agencies and is offered in order to prove the things stated by those employees during the conversations. ( See doc. # 70 at ¶¶ 2-3.)

Baker lays no foundation to qualify any of this evidence for an exception to the hearsay rule. Arguably, for instance, the credit reports fall within the business records exception of Fed.R.Evid. 803(6). However:

A writing is admissible under this exception only if two foundational facts are proved: (1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded, and (2) the record is kept in the course of regularly conducted business activity. These facts must be proved through the testimony of the custodian of the records or other qualified witness, though not necessarily the declarant.

Beyene, 854 F.2d at 1183 n. 4 (emphasis added) (citations and internal quotations omitted). As a mere consumer, Baker cannot testify to the truth of these necessary foundational facts. As stated by the Capital Funding court, which found the business records exception inapplicable under very similar circumstances, “[Plaintiff] has not provided sufficient evidence that [the authenticating witness] has personal knowledge of the record keeping practice of [the credit reporting agency], a company [the authenticating witness] is neither employed by nor affiliated with, other than as a consumer. Accordingly, the Court did not error in excluding the credit reports.” Capital Funding, 2005 U.S. Dist. LEXIS at *7. The court therefore does not look to Baker's hearsay evidence in deciding Retailers' motion for summary judgment. Beyene, 854 F.2d at 1182 (holding that because defendant had not properly laid a foundation for any exception to the hearsay rule, defendant's hearsay evidence was properly ignored on motion for summary judgment).

*7 The court granted Baker's request for additional time to respond to Retailer's evidentiary objections in the event that the court denied Baker's motion to strike those objections. ( See doc. # 93 .) Baker's supplemental submission does not correct the evidentiary insufficiencies. ( See doc. # 95.) Exhibits 1-5 and paragraphs 2, 3, and 4 of Baker's affidavit are therefore inadmissible to the extent they rely on or constitute inadmissible hearsay.



B. Effect Of Inadmissible Evidence On Baker's Reasonable Investigation Claim

Because Baker has submitted no admissible evidence contradicting Retailers' evidence related to the reasonableness of its investigations, no reasonable jury could find that Retailers' investigation and resolution of the disputes was unreasonable, even if the jury did not believe Retailers' witnesses. Canada v. Blain's Helicopters, Inc., 831 F.2d 920, (9th Cir.1987) ( “Discredited testimony is not a sufficient basis for drawing an affirmative contrary conclusion.” (citations omitted)). The court therefore grants Retailers' motion.



VI. Allegation Of Impermissible Credit Report Solicitation

Baker's Complaint suggests that Retailers' solicitation of Baker's credit report, when deciding whether to reinstate her Mervyn's credit line to its previous amount, was improper. (Complaint at ¶ 85.) The Fair Credit Reporting Act does not, however, impose liability on users of consumer credit information. Frederick v. Marquette Nat'l Bank, 911 F.2d 1, 2 (7th Cir.1990). Because Baker has not opposed Retailers' motion on this issue and has provided no other rationale for imposing liability based on Retailers' solicitation of a credit report, the court grants Retailers' motion.

IT IS THEREFORE ORDERED that Retailers' motion for summary judgment (doc. # 63) is granted.
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Albrecht v. Ford Motor Credit Co.
Not Reported in F.Supp.2d, 2005 WL 2007103
N.D.Fla.,2005.
August 12, 2005

In almost every instance the magistrate judge failed to explain the purpose for which he was considering the evidence and/or the relevance of that purpose (if other than for the truth of the statement), stating only that the statement was admissible for the fact that it was said. In most instances the statement was being offered precisely to prove the truth of the matter asserted in order to support an element of plaintiffs' case. For example, the alleged statement by “Rocky” that Plaintiff Christina Raines said was made to her indicating that the charge off had been made to “get more money out of the plaintiff” was clearly offered to prove the truth of the statement which would then presumably be offered as proof of motive. This is classic hearsay and is not admissible absent an exception to the hearsay rules.FN3


FN3. The alleged statement by defendant's employee about awaiting final payment on the loan until insurance was paid was considered by the court on the issue of falsity of the statement because at this stage and on this record it appears to the court that if made the person who made the statement would have been acting at the time as an agent of the defendant and the statement concerned a matter within the scope of employment and thus was not hearsay under the Federal Rules of Evidence. See Fed.R.Evid. 801(d)(2)(D). This statement might also be offered to explain why plaintiff stopped making payments on the loan which may have some arguable relevance.


On the question of injury, the magistrate judge considered plaintiff Albrecht's Chase credit card statement showing an increase in plaintiff's interest rate on the card and the statement of a Chase employee about the negative mark on plaintiff's credit report following the charge off, both of which are inadmissible hearsay. Both are out of court statements offered to prove the truth asserted in each statement; i.e. that Albrecht's credit card rate was increased and that defendant's charge off was the reason. There is no other relevant purpose for which they could be offered. The fact that the statements are highly relevant does not make them admissible. Additionally, the statement allegedly made by Carol Elliot, the mortgage broker, to Plaintiff Albrecht about plaintiff's credit score dropping due to the charge off with a resulting increase in the interest rate offered on the mortgage is an out of court statement offered to prove the truth of the matter asserted; i.e. that plaintiff's credit score dropped and as a result his interest rate would be increased, in support of plaintiff's claim of injury and damages. The fact that Elliot said this to Albrecht is not relevant to any issue, other than of course to prove its truth to support the claim for damages.FN4 The magistrate judge also ruled that certain statements were admissible because the statements were not disputed by the defendant. This is not a permissible ground upon which to admit otherwise inadmissible hearsay.


FN4. The same statement by Elliot to Amber Gately, plaintiffs' co-investor, might be admissible through Amber Gately to explain why Gately back out of the deal with plaintiffs but that's not the statement under consideration.


*3 In addition to the evidentiary issues, the court also has some reservations about adopting the Report and Recommendation based on the references in the Activity Report on plaintiff's account wherein it shows that Plaintiff Albrecht was advised on June 6, 2003 and June 27, 2003, that he was still responsible for payments on the loan and needed to continue making his regular payments. This is directly contrary to what Albrecht says he was told by one of defendant's representatives. However, with some hesitation the court has decided at this time that the question of whether Albrecht was told that payments would be suspended such that the debt was not owed when charged off remains a question of fact for the jury.

Accordingly, it is now ORDERED as follows:

1. The magistrate judge's Report and Recommendation is adopted and incorporated by reference in this order as noted.

2. Defendant's motion for summary judgment, doc. 41, is DENIED.

3. Trial will be scheduled by separate order.

DONE AND ORDERED.


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Kearns v. Kearns
2005 WL 3486887
Pa.Com.Pl. 2005.
June 09, 2005

The court shall now address the issues raised in Wife's concise statement of matters complained of on appeal.

Wife first contends that the court exceeded its authority by not acting on her petition for contempt. This contention is meritless. The court addressed her petition; Wife is unhappy with the result.

Wife submits that it was an error of law and abuse of discretion for the court to take evidence from Husband that was hearsay evidence from a credit report that was not properly authenticated and which she disputed. This contention is without merit.

Wife raised several objections during the proceeding but none were to hearsay or authentication of the credit report. Thus, the evidence could be considered by the court.

Wife did not dispute the report. She disputed the reasons for the judgments. She claimed that she had no knowledge of the judgments or the reasons for them. It is within the trial court's sole province to weigh the evidence presented and assess the credibility of the witnesses. Palladino v. Palladino, 713 A.2d 676 (Pa. Super. 1998). The court found Wife's testimony implausible. It was uncontroverted that Wife handled the parties' finances during their marriage. The judgments constituted marital debt. Wife had to have known about them because she had handled the parties' finances and paid their bills. *244 Thus, she was in a much better position to know about the outstanding judgments. The court found Husband's testimony credible that he had possessed no knowledge of the judgments until he had attempted to refinance.

Wife asserts in several complaints that the court exceeded its authority by changing the amended agreement sua sponte. These complaints are meritless.


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People v. Walker
Not Reported in Cal.Rptr.3d, 2005 WL 78952
Cal.App. 2 Dist.,2005.
January 14, 2005

VI. The trial court properly admitted evidence of credit reports.

*15 Vanessa complains that credit reports for her, Ken and Nada contained multiple levels of hearsay and should not have been admitted pursuant to the business records exception in Evidence Code section 1271. The People, in opposition, argue that Vanessa objected on relevance grounds only and therefore cannot now challenge whether a proper foundation was established for the business records exception. Beyond that, the People contend that a proper foundation was established and, even if it was not, Vanessa was not harmed by any resulting error.

We examine these issues.



A. The proceedings below.

During trial the prosecution indicated that they planned to introduce credit cards and credit documents, including documents from credit card companies and a credit reporting agency, for Ken, Vanessa and Nada. The purpose was to show that Ken and Vanessa incurred substantial debt in Nada's name, Nada found out, and that was the motive for Nada's murder.

Vanessa's counsel objected to the credit reports, stating, “Part of our objection is the timeliness of the information and also the relevance of a lot of information on there. [¶] The credit reporting agency generally just reports multiple levels of hearsay, and putting in a computer what people are telling them, so if we're going to talk about the credit reports, I would appreciate it if [the prosecution] would refer to which group of credit reports and provide the [trial] court a copy, so the [trial] court can evaluate whether they show what [the prosecution] claims.”

The trial court stated that the credit reports were business reports that are relied upon every day in commerce. At that point, Vanessa's counsel argued: “My objection is that they contain a vast quantity of irrelevant information.” When the trial court queried whether the prosecution could lay a foundation for the credit reports, the prosecution stated that it had a representative from Transunion present and ready to testify.

Before introducing the credit reports, the prosecution questioned Jasmina about Nada's credit cards. According to Jasmina, Nada was very frugal. The prosecution showed Jasmina numerous credit cards that bore Nada's name. Jasmina had never seen these cards before. They carried balances and listed Ken and Vanessa's home as the billing address.FN16


FN16. The prosecution presented voluminous evidence demonstrating the fraudulent use of Nada's name to obtain credit.


The trial court indicated that the defense had raised a hearsay objection to the credit reports. Vanessa's counsel added that the objection was also “relevance as to portions” of the reports.

Judd Rousseau (Rousseau), the custodian of records from Transunion, was called to make an offer of proof. He explained that the information in a credit report comes from companies that extend credit. That information is put into Transunion's system within 30 days. Data received by Transunion is analyzed statistically to find discrepancies and is deemed reliable. The credit reports at issue were made in the normal course of business. All the information in those reports was current within a short time from August 25, 2001.

*16 The prosecution argued that the credit reports met the business records exception. In response, Vanessa's counsel stated: “I'm not saying he's wrong about that···· I think [they] contain information that is completely irrelevant.” The trial court found that the credit reports were business records, they were trustworthy, and they were “clearly admissible.” Both Ken's counsel and Vanessa's counsel asserted a relevancy objection that was overruled.

Rousseau then testified before the jury. Ken's credit history revealed accounts that were in excess of credit, past due, or charged off as bad debts. Vanessa's credit history was similar. There was an overlap of credit cards between Vanessa's credit history and Nada's credit history. For other accounts, Nada's history showed charges below credit limits and prompt payments.

The only correlation between Nada's credit cards and Ken's credit cards was a Fleet credit card.



B. Waiver.

Vanessa's objection on appeal is as follows: Rousseau offered no testimony regarding the data gathering and recording practices of the companies that forwarded information to Transunion. There was no finding that these other sources of information were trustworthy. The business records exception “does not permit the introduction of statements made by customers of the business unless the employee was responsible for verifying the statements.” In light of these principles, credit agency reports do not qualify as business records for purposes of Evidence Code section 1271 because they contain multiple levels of hearsay. Moreover, many aspects of credit reports are made with an eye to litigation. When bad debts are being written off and sold is when they should be scrutinized the most.

These objections were waived.

Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”

“ ‘[The] general rule [is] that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.] The contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.” [Citation.]’ [Citation.]” ( People v. Privitera (1979) 23 Cal.3d 697, 710.)

*17 Prior to the Evidence Code section 402 hearing, Vanessa's counsel stated that the credit report contained multiple levels of hearsay. However, it is clear from the context of her statements that her objection was based on relevance, not hearsay. Then, after the prosecution argued that it had laid the foundation for the business records exception, Vanessa's counsel stated that she did not disagree. Her complaint remained that the report contained irrelevant information. Accordingly, we conclude that Vanessa did not preserve her objection for appeal.

In any event, even if Vanessa had preserved her objection and it was well taken, we would nonetheless affirm the judgment. The question would be whether her right to confrontation had been abridged. But even if it had, we would be compelled to affirm if the error was harmless beyond a reasonable doubt. ( Chapman v. California (1967) 386 U.S. 18, 24.) Here, that would be the case.

Vanessa argues that the case against her was weak and that the credit report may have tipped the scales against her. But this contention is belied by the record. There was evidence that Vanessa charged up credit cards in Nada's name, Nada found out and planned to confront Ken and Vanessa. Vanessa was seen at Nada's house the weekend she disappeared. As well, Vanessa was seen following Ken as he drove the Camry. Testing established that Nada's blood was on the Camry, which supports the inference that the Camry was used to transport and dump Nada's body. Because Vanessa knew the location of the Camry after Nada's disappearance, the inference is that Vanessa was involved in the cover up. Amanda looked in the back of the 4-Runner Vanessa was driving and saw Nada's purse. Later, the police found Nada's collection of currency under Vanessa's bed. This evidence suggests that Vanessa stole from Nada after she had been murdered. In our view, the People presented a strong circumstantial case that Vanessa was involved in the crime.

Regarding credit fraud, Solomon testified that Nada accused Ken and Vanessa of incurring debts of $50,000 in Nada's name and of falsely using Nada's name on a credit card application. As well, Jasmina testified that there were accounts in Nada's name that went to Vanessa's address. Even in the absence of the credit reports, the jury had strong evidence of credit fraud. Therefore, any purported error was harmless beyond a reasonable doubt.

We need not determine whether the credit reports qualified as business records under Evidence Code section 1271.


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Rodriguez v. Lynch Ford, Inc.
Not Reported in F.Supp.2d, 2004 WL 2958772
N.D.Ill.,2004.
November 18, 2004

The Seventh Circuit has found that a unilateral decision not to submit a credit application on behalf of a prospective automobile purchaser to any lender is an “adverse action” under the ECOA. See Treadway v. Gateway Chevrolet Oldsmobile Inc., 362 F.3d 971 (7 Cir.2004). Lopez seeks to defeat summary judgment by arguing that Lynch Ford did not submit her application to any lender. As support for this contention, plaintiff offers Lopez's affidavit that she had requested a copy of her credit report from the Trans Union credit bureau, and that the report showed no credit inquiries connected to the purchase of the Jetta during this time period. Plaintiff did not submit the credit report itself, however, and as such, her statement is barred as double hearsay. This Court refers parties to its earlier discussion of the requirements of Local Rule 56.1. Without further evidentiary support, plaintiff's effort to overcome defendant's motion for summary judgment fails for want of raising an issue of disputed material fact. Summary judgment is granted for the defendant on Plaintiff's ECOA claim.


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Davis v. Equifax Information Services LLC
346 F.Supp.2d 1164
N.D.Ala.,2004.
September 15, 2004

First, with respect to Compass Bank and Travelers Insurance, Plaintiff has presented no admissible evidence to support her claim that publication of credit information by Equifax led to their denials of credit to her.FN13 Although Plaintiff has testified that she was denied credit at Compass Bank because her credit score was insufficient, Plaintiff has not presented any evidence to show that Compass Bank relied on a report from Equifax, as opposed to a report from another credit reporting agency. (Davis Depo., 50:11-17; 51:15-52:18; 56:17, 18, 58:19-59:14; 61:4-6). In fact, Equifax has presented undisputed evidence that it has no record of issuing a credit report to Compass Bank. (Fluellen ¶ 15). Similarly, Plaintiff claims that she was denied credit by Travelers Insurance and obtained credit from Gateway only with a high rate of interest. Equifax's records show no inquiries by ( i.e., no credit report issued to) those entities. (Fluellen ¶¶ 14, 16).


FN13. Although Plaintiff claims that she is competent to testify about credit reports which Equifax issued to third parties, the court finds that she is not. Any such testimony would be unsupported hearsay, and Plaintiff has provided no other non-hearsay evidence from the third parties who allegedly received an Equifax credit report.


In fact, the only admissible evidence offered by Plaintiff to show that a creditor relied on an Equifax report in denying her credit is an October 2001 letter from Alabama Power. The letter indicates that Alabama Power obtained a credit report from Equifax, but it states only generally that “[a]fter carefully reviewing your application, we are sorry to advise you that we cannot extend credit to you at this time.” (Doc. # 38, October 2001 Letter Attached to Affidavit of Doug Page). The letter advised Plaintiff to contact Alabama Power “[i]f you would like a statement of specific reasons why your application was denied.” ( Id.). Plaintiff has presented no evidence regarding the specific reasons for her credit denial at Alabama Power, other than her hearsay testimony that someone at Alabama Power told Plaintiff that she was denied credit generally because her credit score was insufficient. (Davis Depo. 51:15-52:4).

Moreover, the undisputed evidence indicates that Plaintiff never reapplied for credit with any of the above-referenced companies after the student loan accounts were removed from her credit file and the mortgage account was reinserted. (Davis *1175 Depo., 55:21-56:2, 62:8-62:11). Accordingly, there is no evidence in the summary judgment record to indicate a correlation between those disputes and her credit denials. In fact, in 2003, even after Equifax did everything Plaintiff requested- i.e., removed the student loan accounts and reinserted the mortgage account-Plaintiff was still denied credit with Sears and American Express and could not obtain an acceptable rate to refinance her home. (Davis Depo. 18:9-18:23, 93:12-94:23). Without “evidence tending to show that [she was] damaged as a result of an allegedly inaccurate credit report” issued by Equifax, Plaintiff's claims cannot withstand summary judgment. Cahlin, 936 F.2d at 1160.


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Lowe v. Surpas Resource Corp.
253 F.Supp.2d 1209
D.Kan.,2003.
March 27, 2003

Under 15 U.S.C. § 1681s-2(b), U.S. Bank is required to conduct an investigation “[a]fter receiving notice pursuant to section 1681i(a)(2) of this title of a dispute” regarding the accuracy of information it provided to a consumer reporting agency. § 1681s-2(b)(1) Aklagi, 196 F.Supp.2d at 1196. Section 1681i(a)(2)(A) *1254 requires a consumer reporting agency, within five business days from receiving the consumer's dispute, to notify any person who provided any relevant item of information about the dispute (allegedly U.S. Bank in this case). Courts have consistently held that this duty is triggered “only after the furnisher [allegedly U.S. Bank in this case] receives notice of the dispute from a consumer reporting agency, not just the consumer.” Aklagi, 196 F.Supp.2d at 1193 (citing Hasvold v. First USA Bank, 194 F.Supp.2d 1228, 1236 (D.Wyo.2002); Scott v. Amex/Centurion S&T, Nos. 3:01-CV-1594-H et al., 2001 WL 1645362, at *4 (N.D.Tex. Dec.18, 2001); Fino v. Key Bank, No. Civ. A. 00-375E, 2001 WL 849700, at *5 (W.D.Pa. July 27, 2001); Jaramillo v. Experian Info. Solutions, Inc., 155 F.Supp.2d 356, 363 (E.D.Pa.2001); Yelder v. Credit Bureau of Montgomery, L.L.C., 131 F.Supp.2d 1275, 1289 (M.D.Ala.2001); Dornhecker v. Ameritech Corp., 99 F.Supp.2d 918, 928-29 (N.D.Ill.2000)). Here, U.S. Bank contends that it neither requested Ms. Lowe's credit reports nor received notice from any consumer reporting agency about a dispute concerning the Mercantile accounts. As such, U.S. Bank believes that the consumer reporting agencies never triggered its duty to investigate the validity of the Mercantile accounts. Ms. Lowe, however, has attached letters mailed by James Renne to four credit reporting agencies that dispute various accounts, including those with Mercantile Bank. These letters triggered the consumer reporting agencies' duty to notify Mercantile that Ms. Lowe had disputed the validity of the debt. 15 U.S.C. § 1681i(a)(2). While it is possible that none of the four consumer reporting agencies Ms. Lowe contacted complied with federal law or that they never actually received the letters, the credit reporting agencies notified Ms. Lowe, after conducting their investigations, that the Mercantile debts had been deleted from her credit report.FN36 This evidence would provide circumstantial evidence that both these agencies actually received the dispute letters from Ms. Lowe and that they contacted Mercantile regarding the dispute. As such, the court finds that Ms. Lowe has demonstrated a genuine issue of material fact as to the existence of an FCRA violation.


FN36. U.S. Bank raises the lack of authentication of these credit reports and contends that the credit reports are hearsay. For purposes of this summary judgment motion, the court will not address those arguments because the court grants U.S. Bank's motion on statute of limitations grounds in any event.


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Winters v. Fowler
114 Wash.App. 1004, Not Reported in P.3d, 2002 WL 31341648
Wash.App. Div. 2,2002.
October 18, 2002

UNPUBLISHED OPINION


ARMSTRONG, J.
*1 After Samuel Winters began a lawsuit against Sarah Fowler, he attempted to serve her at a California address listed on her driver's license. When Winters could not locate Fowler either in California or Washington, he served the Secretary of State under the nonresident motorist statute. Fowler moved for summary judgment, contending that she was a Washington resident at the time of and since the accident. The trial court denied the motion, ruling that an issue of material fact existed as to whether Winters exercised due diligence to find Fowler. We granted Fowler discretionary review and now affirm.



FACTS

Sarah Fowler and Samuel Winters had an automobile collision in Clark County. Fowler apparently lived in Vancouver at the time of the accident, but she gave Winters her California driver's license for identification. She also gave Winters her insurance card, which included the telephone number of her insurance agent who was located in Cowlitz County. Winters made a photocopy of both records. The parties dispute whether Fowler also gave Winters a copy of the vehicle registration and whether Fowler told Winters that she lived nearby and gave him a local address. Neither party filed an accident report.

Winters began a lawsuit against Fowler and attempted to serve her with the summons and complaint at the California address listed on her driver's license. Fowler did not live at the California address. Winters then searched local directories and county records, and he hired an investigator to search electronically for Fowler. Winters found no listings for Fowler in Washington. The investigator obtained Fowler's credit report, which showed that she had recently used the same California address to apply for credit. Winters concluded that Fowler was a nonresident, and he served the Secretary of State under the nonresident motorist statute, RCW 46.64.040.

Fowler moved for summary judgment. She claimed that she was at all times a Washington resident, that Winters had not tried with due diligence to locate her, and that service was improper and untimely. She also moved to exclude any evidence related to her credit report as illegally obtained. The trial court denied Fowler's motions.



ANALYSIS

This court reviews appeals on motions for summary judgment de novo, treating all facts and inferences in the light most favorable to the nonmoving party. Green v. A.P.C., 136 Wn.2d 87, 94, 960 P.2d 912 (1998). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Fowler must show, taking the facts in the light most favorable to Winters, that there are no genuine issues of material fact and that as a matter of law, Winters' service on the Secretary of State was inadequate or improper.



A. Credit Report

Fowler claims that the trial court erred by admitting evidence that Winters' investigator obtained, perhaps illegally, from her credit report. We review a decision to admit evidence for abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). The credit report showed that Fowler had recently applied for credit using her California address. Winters correctly noted that the credit report was not hearsay because it was not admitted to show the truth of the matter asserted or to show that Fowler did in fact live in California. ER 801(c). It was admitted only to show that Winters had a reasonable good faith belief that Fowler lived in California.

*2 Fowler also contends that the credit report is inadmissible because state law prohibits dissemination of credit information. Chapter 19.182 RCW. Washington law limits the circumstances under which a consumer reporting agency may furnish credit reports.

RCW 19.182.020. But a credit agency may furnish a report to a person who ‘has a legitimate business need for the information in connection with a business transaction involving the consumer.’ RCW 19.182.020(1)(c)(v). The statute imposes criminal penalties when a person ‘knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses{.}’ RCW 19.182.130. No Washington cases have interpreted these statutes, but federal cases interpreting nearly identical federal statutes provide guidance.

One federal court found that a law firm, attorney, and company who acquired a person's credit report to get an alternate address at which to serve him had a legitimate business need and did not violate the statute. Korotki v. Attorney Serv. Corp., 931 F.Supp. 1269 (D. Maryland 1996). The court's decision relied on the plaintiff's belief that he had a business relationship with the person whose credit report he obtained, and he was trying to collect a debt owed to him; these facts led the court to find a legitimate business need for the credit report. Korotki, 931 F.Supp. at 1277-78.

In another case, in which an ex-wife sued her ex-husband's investigator for acquiring her credit report, the court required the wife to prove that the investigator had ‘willfully’ violated the statute. Berman v. Parco, 986 F.Supp. 195, 199 (S.D.N.Y.1997). The court noted that the statute ‘does not, by its plain terms, place any duty upon persons to refrain from requesting consumer reports from individuals for purposes not authorized by the {statute}.’ Berman, 986 F.Supp. at 200.

But another court rejected an attorney, law firm, and investigator's attempt to claim a legitimate business need for the plaintiff's credit report, even though the plaintiff, as a borrower, was involved in an underlying business transaction with the defendant, a mortgage broker. Duncan v. Handmaker, 149 F.3d 424, 427 (6th Cir.1998). The underlying loan was not the subject of the lawsuit; the plaintiff had sued the mortgage company for negligence. Duncan, 149 F.3d at 428. While a lawsuit involving the collection of a debt may give rise to a legitimate business need for a party's credit report, trial preparation does not fall within the scope of the statute. Duncan, 149 F.3d at 427-28.

Winters may have had a legitimate business need to obtain Fowler's credit report. He had filed a lawsuit against her and needed to serve her with a summons and complaint. But even if Winters did not have a legitimate business need, there is no evidence that he or his investigator obtained the report under false pretenses. A person acts under false pretenses when he knowingly and willfully obtains a consumer report for a purpose the statute does not authorize, and he does not tell the reporting agency his true motivation. Duncan, 149 F.3d at 426. Nothing in the record shows that Winters' investigator willfully violated the statute or obtained the information under false pretenses.

*3 Finally, the credit report itself was not offered into evidence. Instead, Winters' investigator stated in his affidavit that he learned from the report that Fowler had recently used the California address. The investigator did not disclose any financial or personal information about Fowler. The trial court did not abuse its discretion by considering the investigator's declaration about part of Fowler's credit report.



B. Nonresident Motorist Statute

Under the nonresident motorist statute, a plaintiff may serve a person who was involved in a motor vehicle accident in the state, and who was a nonresident or left the state after the accident, by serving the Secretary of State and attempting with due diligence to serve the defendant personally. RCW 46.64.040. The statute applies ‘not only where plaintiff can conclusively establish that the defendant is a nonresident or resident who has departed the state, but also where there is a reasonable basis to conclude that this is the case.’ Martin v. Meier, 111 Wn.2d 471, 479, 760 P.2d 925 (1988). The plaintiff may serve the Secretary of State when he ‘has a good faith belief that defendant has departed the state and {he} has with due diligence attempted to find and serve defendant.’ Meier, 111 Wn.2d at 480. Due diligence requires that the plaintiff make ‘honest and reasonable efforts to locate the defendant,’ but it does not require the plaintiff to use ‘all conceivable means' to find her. Meier, 111 Wn.2d at 482.

In Meier, the plaintiff tried to serve the defendant at a Washington address listed on the accident report. Meier, 111 Wn .2d at 473. He asked neighbors and defendant's former university about defendant's whereabouts. Neighbors told him the defendant had moved to California. Meier, 111 Wn.2d at 474-75. He found no listing in telephone and police records. Meier, 111 Wn.2d at 475. The court found that his efforts constituted due diligence and that he had a reasonable good faith belief that defendant had left the state. Meier, 111 Wn.2d at 482-83. Accordingly, the court found service under the nonresident motorist statute appropriate. Meier, 111 Wn.2d at 483.

In Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993), the plaintiff began looking for the defendants only five days before the service of process period expired. A process server could not locate the defendants, and neighbors did not know where the defendants were. Triol, 121 Wn.2d at 150. The plaintiff accordingly served the Secretary of State under the statute. Triol, 121 Wn.2d at 150. The court found that the statute applied because defendants had temporarily left the state on vacation, and plaintiff had searched for them with due diligence. Triol, 121 Wn.2d at 150-51. Similarly, in Carras v. Johnson, 77 Wn.App. 588, 594, 892 P.2d 780 (1995), plaintiff's efforts, which consisted of hiring a professional process server and relying on the accident report for defendants' addresses, ‘while certainly not exhaustive, were both honest and reasonable,’ and satisfied the statute.

*4 These cases contrast with Huff v. Budbill, 141 Wn.2d 1, 1 P.3d 1138 (2000), where the plaintiff was not entitled to serve the defendant under the nonresident motorist statute. In Huff, the plaintiff was unable to serve the defendant at his last known address and noticed that mail was piling up at the defendant's home and phone messages went unreturned. The court stressed that the statute did not apply when the plaintiff simply could not find the defendant. Huff, 141 Wn.2d at 9. Instead, as in Meier, the plaintiff must have reasonable basis for his good faith belief that the defendant has left or never did reside in the state. Huff, 141 Wn.2d at 12. While Huff could possibly infer that Budbill had moved, it required a “quantum leap' in logic' to conclude in good faith that Budbill had left the state. Huff, 141 Wn.2d at 16.

Fowler relies on Huff. She contends that it was unreasonable for Winters to rely on the California license because it was older than the insurance card. She claims that Winters did not act diligently because he did not undertake other measures that could have revealed her Washington address. We disagree.

Huff had no information leading him to believe that the defendant may have moved out of state. Huff, 141 Wn.2d at 16. Conversely, as in Meier and Carras, Winters had information that Fowler had lived in California and that she still used that address. Winters searched telephone directories, public utility records, and assessor records in Clark County, but he found no listing for Fowler. Taking the facts in the light most favorable to Winters, Fowler did not tell him that she lived in Washington nor provide him with a Washington license. His investigator discovered that Fowler had recently used the same California address as that on her driver's license. In hindsight, Winters could have taken other measures to find Fowler, such as calling her insurance agent or searching Department of Licensing records. But the focus is on what Winters did, not on what he failed to do. Carras, 77 Wn.App. at 593. There is evidence that Winters had a good faith, reasonable belief that Fowler was not a Washington resident. And the evidence is sufficient to support a finding that he exercised due diligence to find her. Meier, 111 Wn.2d at 479-80. Thus, an issue of material fact exists as to whether Winters complied with the nonresident motorist statute. The trial court properly denied Fowler's motion for summary judgment. Accordingly, we affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.


We concur: HOUGHTON, J., and QUINN-BRINTNALL, A.C.J.


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Thomas v. State
Not Reported in S.W.3d, 2002 WL 54821
Ark.App.,2002.
January 16, 2002

Appeal from the Pulaski County Circuit Court, No. CR99-2158, CR99-2555, CR99-3351 and CR00-535; John Plegge, Judge.

SAM BIRD, Judge.
*1 This appeal arises out of four separate Pulaski County Circuit Court cases that are consolidated for purposes of appeal. In CR99-2158, appellant Lajoyya Ashley Thomas was convicted of four counts of second-degree forgery and two counts of misdemeanor theft of property; in CR99-2555, Thomas was convicted of one count of fraudulent use of a credit card; in CR99-3351, Thomas was convicted of one count of second-degree forgery; and in CR00-535, Thomas was convicted of one count each of financial identity fraud, second-degree forgery, and first-degree forgery.

Thomas's counsel has filed a no-merit brief and a motion to withdraw in CR99-2158 and CR99-3351. He has attempted to do likewise in CR00-535, in which he contends there is no meritorious ground for appeal except for the denial of appellant's motion to return seized property. Thomas was given thirty days in which to file pro se points of appeal in these no-merit cases; he did not do so. This court denied, on October 3, 2001, Thomas's pro se motion to file a belated reply brief.

Appellant's counsel has filed a merit brief in CR99-2555, contending that the circuit court erred in denying Thomas's hearsay objection to the admissibility of a credit report of the alleged victim and that the State failed to introduce substantial evidence that Thomas was guilty of Class C felony fraudulent use of a credit card account number because the State failed to prove the value of the property that Thomas obtained in using Patricia Craig's credit card account numbers. In CR00-535, which we treat as a merit appeal, counsel contends that the only meritorious ground for appeal is that the circuit court erred in denying Thomas's pro se post-trial motion, requesting that the court order the Little Rock Police Department to return to Thomas the $1,873 that a Little Rock police officer seized from his purse when she arrested Thomas on December 1, 1999.



I. CR99-2158

Thomas was convicted of four counts of second-degree forgery and two counts of misdemeanor theft of property. He was accused of possessing a prescription that was not his and forging checks. Counsel's list of adverse rulings included two objections to hearsay and an objection to a leading question. The first hearsay objection did not result in an adverse ruling and as such, cannot be addressed on appeal. The objection to the leading question that was overruled by the court did not constitute an abuse of discretion by the court.

The second hearsay objection was to a police officer's statements regarding the photo spread that the officer showed the pharmacists to whom the prescriptions in question had been submitted. The court ruled that “she [the officer] can testify about what her investigation revealed.” The witness proceeded to state that the pharmacists, Walter Fruchey and Ray Turnage, identified Thomas. A police officer can properly testify as to the existence and circumstances of an extrajudicial identification by witnesses if there is no defect in the identification procedure used, and if the person making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense. Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994); Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). These standards were met in this case; therefore, we agree that this ruling provides no meritorious ground for appeal.

*2 Counsel further contends that a challenge to the sufficiency of the evidence would also be without merit. A person forges a written instrument if, with the purpose to defraud he draws, makes, completes, alters, counterfeits, possesses or utters any written instrument that purports to be or is calculated to become or represent if completed the act of a person who did not authorize that act. Ark.Code Ann. § 5-37-201(a)(Repl.1997). A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark.Code Ann. § 5-36-103(a)(1)(Repl.1997).

Trial counsel based his motion for directed verdict on the grounds that the evidence did not provide a reliable identification of Thomas as the one who wrote the checks and that the in-court identification was based on the photo line-up instead of independent recollection. There was testimony from both pharmacists who were the victims of Thomas's forgery that he was the one who tendered the prescriptions and checks. There was testimony from Detective Andrew that the pharmacists had identified Thomas from a photo line-up.

It is for the trial court to determine if there are sufficient aspects of reliability present in an identification to permit its use as evidence. Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). It is then for the jury to decide what weight that identification testimony should be given. Id. Matters of credibility and conflicts in testimony are for the trial court and those decisions will not be disturbed on appeal. Id. The factors to be considered in determining the reliability of an identification include: (1) opportunity to view the suspect; (2) accuracy of the description; (3) prior misidentification; (4) level of certainty demonstrated at confrontation; (5) failure of witness to identify the defendant on a prior occasion; (6) lapse of time between alleged act and the identification. Id.

Ray Turnage filled the prescription in February and was shown the photo line-up in May. Detective Andrew's testimony established that Turnage had described Thomas as a black male dressed as a female. Turnage initially misidentified Thomas. However, he testified that he remembered the defendant as the one who tendered the prescription because the prescription, one for hydroquinone cream, was an unusual prescription for dark-skinned persons such as the defendant.

Walter Fruchey testified that he received a prescription for hydroquinone cream and identified Thomas as the person who tendered the prescription He testified that this transaction occurred on February 19, 1999, and that the check was returned from the bank due to insufficient funds on February 22. He testified that Thomas stood three feet away from him during the transaction and stared at him the entire time. Fruchey testified he remembered the transaction because he found that behavior unusual, as people usually shop while waiting for their prescriptions to be filled. He stated that the prescription was in the name of Jennifer Armstrong, that the defendant tendered a check under that name, and that the defendant was dressed as a female during this transaction. He testified that he observed Thomas go to the cash register and write the check and that he later received the check back from the bank because it had been reported lost or stolen. He further stated that though he did not view the actual writing of the check, the amount of the returned check in Jennifer Armstrong's name would cover the cost of that specific prescription, and that he watched Thomas take the prescription to the cash register.

*3 Based on the foregoing testimony, it was not clearly erroneous for the judge to consider the identification reliable, considering the Milholland factors. There is substantial evidence to support the identification of Thomas as the one who tendered the prescriptions and forged the checks to the pharmacists.



II. CR99-2555

Counsel contends there is merit to the appeal of case No. CR99-2555. He contends that Thomas's conviction for fraudulent use of a credit card should be reversed because the court erred in denying Thomas's hearsay objection to the admissibility of a credit report of Patricia Craig, the alleged victim, and because the State failed to prove the value of the property obtained through use of the card.

Counsel contends that “credit reports are hearsay and, therefore, are inadmissible unless they are qualified for admission pursuant to the hearsay exception that allows records of regularly conducted business activity to be admitted,” citing United States v. Metallo, 908 F.2d 795 (11th Cir.1990) and United States v. Beecroft, 608 F.2d 753 (9th Cir.1979). Counsel argues that credit reports inherently lack trustworthiness without some indication that the record was made by someone in the course of their business and near the time of the events. Counsel further contends that the proper foundation for the business-records exception was not laid because no custodian of the credit report records testified and that the report's admission was prejudicial because it constituted the State's only proof that the transactions were credit transactions.

The State contends that the admission of the reports was not reversible error because Craig testified, without objection, to the contents of the report. We need not decide in this case whether the business-records exception is applicable to credit reports in this case because the report's admission was harmless error. The business records predicate was not met in this case; there was no testimony from a custodian of the records and no business-records exception affidavit to replace the custodian's testimony. However, even if credit reports must be admitted under the business-records exception and such exception was not met here, this was harmless error, as the relevant part of the report is merely cumulative of Craig's testimony-that the two credit transactions were made. The report, as Thomas's counsel argues, does contain much more information than this. However, we cannot say that the admission of such extraneous information, such as amount of outstanding credit, payment history, etc. contained in the report, was harmful error.

Counsel next contends that the State failed to introduce evidence that the value of the property obtained by Thomas exceeded one-hundred dollars during a six-month period. A motion for dismissal, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Ayers v.. State, 334 Ark. 258, 975 S.W.2d 88 (1998). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, we review the evidence in the light most favorable to the State and consider only evidence supporting the verdict. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion without resort to speculation or conjecture. Id.

*4 In Ayers, the appellant argued that the State had not produced sufficient evidence of the value of the property alleged to be stolen because the owner of the stolen car did not testify. The court stated that:

Value is defined in relevant part at Ark.Code Ann. § 5-36-101(11)(A)(i)(Repl.1997) as “the market value of the property or services at the time and place of the offense····” While testimony by the owner as to the property's value is certainly helpful, it is neither conclusive nor required···· The preferred method of establishing value is by expert testimony, not by testimony from the owner. Value, however, may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Thus, when the circumstances present substantial evidence indicating the value of property, direct proof of value is not required.

Id. at 268, 975 S.W.2d at 93-94.

In the case at bar, the owner of the credit cards, Craig, testified that approximately $2,800 in unauthorized charges were made on her accounts. A victim's testimony constitutes substantial evidence to support a finding that stolen property was valued in excess of the statutory minimum. See Watson v. State, 271 Ark. 661, 609 S.W.2d 673 (Ark.App.1980). Craig's testimony as to the amount of charges was substantial evidence that the value of the items obtained was in excess of $100.

Because the admission of the credit report was not harmful error and because there is substantial evidence that the value of the goods obtained by Thomas exceeded $100, we affirm his conviction in case No. CR99-2555.



III. CR99-3351

Counsel contends that case No. CR99-3351, in which Thomas was convicted of one count of second-degree forgery, has no merit to its appeal. We agree.

Thomas requested the court to relieve his public defender and appoint him a new attorney. Thomas argued that his public defender was not representing him properly because the defender had only been to see him once during his five-month incarceration in jail, would not bring him motions for discovery, and urged Thomas to plead guilty. Counsel contends this point has no merit.

In Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988), the court rejected an ineffective-assistance-of-counsel argument that was based on failure to investigate, failure to question certain witnesses, failure to file pre-trial motions, inexperience, and failure to confer with appellant. The court stated that:

appellant fails to specify what new evidence or matter further investigation would have uncovered to change his plea, or how additional pre-trail motions could have produced a different result. The allegations are wholly conclusory and will not, therefore, sustain a claim of ineffective assistance of counsel. Nor will general assertions that counsel did not meet with the defendant often enough, or did not aggressively prepare for trial be sufficient.

*5 Id. at 245, 761 S.W.2d at 166 (citations omitted).

In the case at bar, Thomas's assertion that his counsel failed to visit with him enough, just like the assertion in Furr, is too general to provide a basis for a meritorious appeal.

Next, Thomas argued to the trial court that the State had promised to nolle prosse two charges if he pleaded guilty to the forgery charge in this case, CR99-3351. However, he did not specify which charges he claimed would be nolle prossed and did not identify the charges to which he had agreed to plead guilty. The court proceeded to trial.

Counsel contends this point has no merit because Thomas had the burden to prove that an agreement existed between the State and himself. In Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1979), the appellant claimed the existence of an agreement with the State by which he would “clear up” some other burglaries in exchange for a lesser sentence. The Steffen court stated:

The burden of proof on appeal is upon appellant to show the existence of any agreement···· The determination of the existence of a valid agreement between the state and the defendant is a matter within the sound judicial discretion of the trial court···· Weighing the evidence in the light most favorable to the appellee, it cannot be said that the terms of the purported agreement were established with such exactness that failure to find the existence of an agreement was an abuse of discretion.

Id. at 404-05, 590 S.W.2d at 304.

Thomas failed to carry his burden; thus, we agree that this point provides no meritorious basis for appeal.

The last adverse ruling in this case was an objection on the basis of lack of personal knowledge; however, this objection was not pursued and no ruling was obtained. This constitutes either a withdrawn objection, which cannot preserve the issue for appeal, or a failure to obtain a ruling, which cannot preserve the issue for appeal. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001); Cook v. State, 319 Ark. 779, 894 S.W.2d 589 (1995). Therefore, we agree that this point provides no meritorious basis for appeal.

Counsel further contends that a challenge to the sufficiency of the evidence would be barred on appeal because trial counsel failed to move for dismissal at the close of all of the evidence. Counsel is correct. See Ark. R.Crim. P. 33.1(c).



IV. CR00-535

In this case, Thomas was convicted of one count each of financial identity fraud, second-degree forgery, and first-degree forgery, resulting from a sales transaction at J.C. Penney's in which Thomas forged a check and used a driver's license belonging to Denecia Alexander. Counsel contends that there are no meritorious grounds for appeal in this case, except for one: that the court erred in denying Thomas's pro se motion for return of seized items. We agree that there are no meritorious grounds for appeal. The adverse rulings were either not preserved for appellate review or did not constitute reversible error.

*6 We disagree that the court erred in denying Thomas's pro se motion for return of seized items. When Thomas was arrested, Little Rock police seized $1,873 from him. On May 2, 2000, which was post-trial but prior to entry of the judgment, Thomas filed a pro se motion for return of this seized money. The judgment was entered on May 16, 2000. Arkansas Rule of Criminal Procedure 33.3 was amended in 2001 to provide that a motion filed post-trial, but prior to entry of judgment was valid. Before this amendment, such a motion was deemed untimely filed and ineffective. See Brown v. State, 333 Ark. 698, 970 S.W.2d 287 (1998); Davies v. State, 64 Ark.App. 12, 977 S.W.2d 900 (1998). The amended rule, however, was not in effect at the time Thomas filed his motion; thus, the motion was untimely and ineffective.

Even if the motion was timely, however, Thomas would yet be barred from appealing the denial of his motion because he did not file an amended notice of appeal. The motion was filed on May 2, 2000. Because it was filed prior to entry of the judgment, it was deemed filed on the day after the entry of judgment, May 17, 2000. See Ark. R.Crim. P. 33.3(b). Because the trial court neither granted nor denied the motion within thirty days of the date on which the motion was deemed filed, it was deemed denied thirty days thereafter, on June 16, 2000. See id.

Under Arkansas Rule of Appellate Procedure-Criminal 2(a)(3), Thomas had thirty days from the date on which the motion was deemed denied, June 16, 2000, to file a notice of appeal. Thomas timely filed his notice of appeal on June 13, 2000. However, “a party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice ···” Ark. R.App. P.-Crim. 2(b)(2). Thomas did not amend his notice of appeal; thus, the deemed denial of the motion for return of seized items is procedurally barred from our review.

Because we agree that case Nos. CR99-2158 and CR99-3351 present no meritorious grounds for appeal, we grant counsel's motion to withdraw in these cases.

Affirmed.


CRABTREE and BAKER, JJ., agree.


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Sternaman v. Experian Information Solutions, Inc.
Not Reported in F.Supp.2d, 2001 WL 1478662
D.Minn.,2001.
November 19, 2001

Sternaman's only evidence linking the Experian report to the credit denial is her claim that she was “told by North Star Bank” that the denial was due to derogatory information on her Experian credit report. Pl. Mem. in Opp'n to Experian's Mot. for Summ. J. at 4 (citing Sternaman Dep. at 21). However, this bit of hearsay fails to support her assertion that North Star Bank ever specified that its credit denial was based on the Experian credit report. FN4 “Hearsay evidence is insufficient to create a material issue of fact.” Redd v. Fisher Controls, 814 F.Supp. 547, 550 (W.D.Tex.1992).


FN4. The Sternaman deposition testimony cited to support her claim reads as follows:

Q: [T]he $1,500 loan that you got denied for at North Star Bank, is that denial now to your recollection based on an Experian credit report?

A: Originally an Experian credit report.

Q: Why did you say “originally an Experian credit report”?

A: Because when this came through again with a denial because we couldn't get the first time-in '96, we couldn't get the loan. So when this came through again with Experian as a denial, I asked a fellow employee, one of our officers, who do backgrounds and they use CSC as their credit.

Sternaman Dep. at 21.

Q: What I want to find out from you though is whether after having looked at your complaint, Paragraph 45 of the complaint specifically, does that refresh your recollection that the credit denial in 1998 ··· was based on an Experian credit report rather than a CSC credit report? Is that a true statement?

A: Yes, it is···· I think [CSC] did play a part in our denial, but as far as the letter shows and the complaint shows, it was Experian that caused the problem initially.

Sternaman Dep. at 23. This testimony speaks to the allegation that it was an Experian credit report that North Star Bank had access to in its consideration of Sternaman's loan as opposed to a CSC credit report, however it does not establish that North Star Bank actually relied on the Experian report, or if it did, that it relied on any particular portion of the report.


Sternaman has presented no evidence to establish that her credit denial was caused by inaccurate entries on an Experian credit report. On North Star Bank's “Statement of Credit Denial,” created on June 16, 1998, and mailed to Sternaman, in the section of the form titled “DISCLOSURE OF USE OF INFORMATION OBTAINED FROM AN OUTSIDE SOURCE,” the box checked indicates that its decision was based, in whole or part, on information from a source other than a consumer reporting agency. Experian Ex. 11. Further, the box that would indicate a credit decision “based in whole or in part on information obtained in a report from [a] consumer reporting agency” was left unchecked, and no reporting agency was listed in that section. Id. Viewing the facts in the light most favorable to Sternaman, even if she were to show that the Experian credit report was the basis of the denial, there is no evidence to support her claim that the derogatory entry regarding Cross Country specifically was the basis for the denial, rather than any one, or all, of the remaining three derogatory entries. Because Sternaman is unable to satisfy her burden of proof regarding causation, Experian's Motion for Summary Judgment is granted.


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McMillan v. Experian,
170 F.Supp.2d 278, D.Conn., October 19, 2001 (No. 3:99CV1481(JBA), 3:99CV1482(JBA).)

Consumer brought action against several entities, including bank, allegedly responsible for reporting incorrect credit information about him in violation of the Fair Credit Reporting Act (FCRA), asserting state law claims of defamation and misrepresentation claims against bank. After consumer settled with other credit reporting entities, bank moved for summary judgment and to strike consumer's affidavit in opposition to summary judgment. The District Court, Arterton, J., held that: (1) portion of consumer's summary judgment affidavit relating to incomplete, unverified, and hearsay credit reports was admissible; (2) portion of affidavit asserting that consumer was denied car insurance on basis of credit report was inadmissible; (3) consumer was not entitled to economic damages under the FCRA; (4) genuine issue of material fact existed as to whether consumer was entitled to damages for emotional distress, precluding summary judgment on FCRA claim; (5) genuine issue of material fact precluded summary judgment on defamation claim; but (6) consumer failed to establish misrepresentation claim.
Motion to strike granted in part and denied in part, and motion for summary judgment granted in part and denied in part.

MEMORANDUM OF DECISION [163, 182, 201]


ARTERTON, District Judge.


I. Introduction

Following a series of credit denials in 1998 and 1999, plaintiff Henry McMillan discovered that his credit report had been erroneously merged with that of another Henry McMillan, later determined to be plaintiff's son. Plaintiff's credit was satisfactory; his son's was not. Plaintiff filed suit against two credit reporting agencies and several other entities allegedly responsible for reporting incorrect credit information, including defendant Associates National Bank, alleging that Associates failed to properly investigate the disputed accounts and impermissibly accessed his credit report, in violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.FN1 Plaintiff also asserts state law defamation and misrepresentation claims against Associates.


FN1. Plaintiff has since settled with all defendants but Associates.


Associates has moved for summary judgment. For purposes of this motion, Associates argues that “[e]ven if [it] did violate the FCRA, which it clearly did not, it is undisputed that plaintiff did not suffer any damages as a result of Associates' purported violation,” and that it is therefore entitled to summary judgment.



II. Motion to Strike

Associates has moved to strike plaintiff's affidavit submitted in opposition to summary judgment as violative of Fed.R.Civ.P. 56(e)'s requirement that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

Paragraphs One through Three of Mr. McMillan's affidavit state that plaintiff received copies of his credit reports from Trans Union, Equifax and Experian, which included information about who had obtained*281 copies of his credit report. Copies of parts of those credit reports were attached as exhibits to his affidavit. Paragraph Four states that “[i]n August 1999, [plaintiff] was denied car insurance by Colonial Penn based on [his] Experian credit report.” According to Associates, because the partial credit reports are incomplete, unverified and hearsay, the exhibits to plaintiff's affidavit must be disregarded by this Court. Associates further argues that Paragraph Four is inadmissible hearsay because plaintiff refers to statements made to him by Colonial Penn Insurance Co. without submitting any statement to that effect by Colonial, and that Paragraph Four contradicts plaintiff's previous deposition testimony.

The Second Circuit has recently reiterated that “[a]ffidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial.” Santos v. Murdock, 243 F.3d 681, 684 (2d Cir.2001) (emphasis added) ( citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 (stating that nonmoving party need not “produce evidence in a form that would be admissible at trial” but must “by her own affidavits ··· designate specific facts showing that there is a genuine issue for trial”)); see also Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) (a plaintiff “cannot rely on inadmissible hearsay in opposing a motion for summary judgment absent a showing that admissible evidence will be available at trial”) (internal citations omitted).

[1] Here, plaintiff's sworn statements in Paragraphs One through Three of his affidavit, although perhaps not in a form adequate to make the attached credit report excerpts admissible at trial, do satisfy Rule 56(e)'s requirement of setting forth evidence that will be presented in admissible form at trial, as defendant has identified nothing that suggests that the credit reports attached to plaintiff's affidavit could not be admitted at trial with the appropriate foundation under the business record exception to the hearsay rules, Fed.R.Evid. 803(6). Thus, the Court concludes that Paragraphs One through Three and the attached exhibits will be considered for purposes of this motion for summary judgment, and defendant's motion to strike is denied as to these paragraphs and the attached exhibits.

[2] [3] Paragraph Four, however, suffers from a serious deficiency. First, plaintiff has not identified any basis for his knowledge of the reasons for the Colonial Penn insurance denial. See Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir.1986) (affidavit struck where it “contains no information to indicate a basis in personal knowledge for the affiant's ··· statement”). If plaintiff's basis for his knowledge of the reason for the denial is what a Colonial Penn representative told him, his testimony on that fact would be inadmissible hearsay because offered for the truth of its contents. “An affidavit made on secondhand information and hearsay is not made on the ‘personal knowledge’ of the affiant for the purposes of Rule 56(e).” Isaacs v. Mid America Body & Equip. Co., 720 F.Supp. 255, 256 (E.D.N.Y.1989); accord Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (“a hearsay affidavit is not a substitute for the personal knowledge of a party”). Thus, in the absence of an affidavit or other admissible evidence from Colonial Penn as to the reason for the credit denial, defendant's motion to strike is granted in part as to the part of Paragraph Four that explains the reason for the denial of insurance. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999) (affidavit of *282 employee as to reason why he was not hired by defendant employer was “hearsay that would not be admissible at a trial” and therefore could not be relied on in opposing summary judgment).FN2


FN2. However, the Court notes that the excerpts of plaintiff's Experian credit report attached to his affidavit indicate that Colonial Penn requested plaintiff's credit report to conduct insurance underwriting on August 28, 1999, and that the existence of such request is properly considered as part of the summary judgment record before this Court.




III. Factual Background

The following facts are undisputed for purposes of this motion for summary judgment. In September 1998, Mr. McMillan was informed by Wachovia Bank that his Wachovia credit card, which had been issued earlier that year, would be “discontinued.” Thus, in November 1998, when plaintiff attempted to use the Wachovia credit card at the Hampton Hotel in North Carolina, he was denied credit under embarrassing circumstances. Plaintiff was also denied a low-interest American Association of Retired Persons (“AARP”) credit card for which he had been previously approved in December 1998.

Concerned about his credit rating, on December 29, 1998, plaintiff contacted two credit reporting agencies, Experian and Equifax, and informed them that various accounts listed on his credit reports, including the Associates account that gives rise to this action, were not his credit card accounts. In response to inquiries by Experian and Equifax, Associates compared the social security number and date of birth for the Henry McMillan on record as the owner of the Associates account with that of plaintiff Henry McMillan, which matched, and Associates reported that the account did indeed belong to plaintiff. However, the actual Associates account owner had a different home address, telephone number, place of business and work phone number than plaintiff Henry McMillan, which Associates did not report. Experian and Equifax continued to list the Associates account on plaintiff's credit report until some time after August 27, 1999 when Associates instructed the credit reporting agencies to delete the account from plaintiff's credit report.FN3


FN3. There is no evidence in the record indicating when, if ever, the Associates account was actually removed by the credit reporting agencies.


Between January 1999 and the end of August 1999, plaintiff's Experian and Equifax credit reports were received by various financial entities including Household Bank, Citibank Visa and Capital One Bank. In August 1999, plaintiff applied for insurance with Colonial Penn and was rejected. Colonial Penn requested plaintiff's Experian credit report on August 28, 1999. In late September 1999, at the direction of his lawyer, plaintiff applied for a Fleet Bank credit card and was rejected in October 1999. Fleet accessed plaintiff's Trans World credit report on September 29, 1999.



IV. Discussion



A. Summary Judgment

Summary judgment will be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; *283 Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Ametex Fabrics, Inc. v. Just In Materials, Inc., 140 F.3d 101, 107 (2d Cir.1998). “A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no issue warrant judgment for the moving party as a matter of law.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995).

The initial burden of demonstrating the absence of a disputed issue of material fact lies with the moving party. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; LeBoeuf, Lamb, Greene & MacRae v. Worsham, 185 F.3d 61, 64 (2d Cir.1999). “[W]here, as here, the non-movant bears the burden of proof at trial, the movant can satisfy its burden of production by pointing out an absence of evidence to support an essential element of the non-movant's case.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir.1999) (citing Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir.1998)); see also LaBounty v. Coughlin, 137 F.3d 68, 72 (2d Cir.1998) (“The defendants' burden ‘will be satisfied if [they] can point to an absence of evidence to support an essential element of the nonmoving party's claim.” ’) (quoting Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995)).

If the moving party meets this burden, the burden then shifts to the non-moving party to come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); accord Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir.2001). The non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Instead, that party must “come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely ··· on the basis of conjecture or surmise.” Trans Sport v. Starter Sportswear, 964 F.2d 186, 188 (2d Cir.1992) (citation and internal quotations omitted); see also Gibson v. American Broadcasting Cos., 892 F.2d 1128, 1132 (2d Cir.1989).



B. FCRA Claim

[4] The FCRA, 15 U.S.C. § 1681s-2(b), imposes a duty on entities responsible for furnishing information to consumer reporting agencies following the receipt of notice of a dispute regarding the accuracy of information provided by that furnisher to the consumer reporting agency to:

(A) conduct an investigation with respect to the disputed information;

(B) review all relevant information provided by the consumer reporting agency pursuant to section 1681i(a)(2) of this title; FN4


FN4. 15 U.S.C. § 1681i(a)(2) requires a consumer reporting agency to promptly report notice of any dispute from a consumer to the person or entity who provided the information in dispute.


(C) report the results of the investigation to the consumer reporting agency; and

(D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis.

*284 Where a plaintiff claims a negligent violation of the FCRA, he must also provide some evidence from which a reasonable factfinder could conclude that he suffered actual damages as a result of defendant's actions in order to survive summary judgment. See 15 U.S.C. § 1681 o FN5; see also Lendino v. Trans Union Credit Info. Co., 970 F.2d 1110, 1111-12 (2d Cir.1992); Cahlin v. General Motors Acceptance Corp., 936 F.2d 1151, 1161 (11th Cir.1991).FN6


FN5. 15 U.S.C. § 1681 o provides: “Any person who is negligent in failing to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of (1) any actual damages sustained by the consumer as a result of the failure; (2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorneys fees as determined by the court.”


FN6. “Willful noncompliance” with the FCRA is governed by § 1681n, which provides for payment of actual damages or statutory damages between $100 and $1,000. As Associates correctly observes, plaintiff's complaint does not allege that Associates' failure to comply with § 1681s-2(b) was willful, compare Complaint, 3:99cv1481 (JBA), ¶ 24, with ¶ 25; Complaint, 3:99cv1482 (JBA), ¶ 28, with ¶ 29; and plaintiff's brief does not argue that Associates' noncompliance was willful. Accordingly, the Court construes plaintiff's complaint as alleging negligent noncompliance with FCRA.


[5] Associates argues that plaintiff has failed to come forward with evidence of actual damages caused by Associates' alleged negligence. As the party whose motion focuses on an element of the non-moving party's case, Associates points to the absence of evidence of actual damages, and the burden then shifts to the non-moving plaintiff to demonstrate the existence of a material factual dispute as to the existence of damages. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548; LaBounty v. Coughlin, 137 F.3d 68, 72 (2d Cir.1998).



1. Economic damages

[6] Notwithstanding the hearsay deficiency of plaintiff's affidavit, the evidence shows that plaintiff applied for insurance through Colonial Penn, Colonial Penn requested and received plaintiff's credit report while it contained the inaccurate negative information about the Associates account, and plaintiff was denied insurance. Thus, a reasonable factfinder could infer that the denial of insurance resulted from the negative credit report and was thus caused by Associates' allegedly negligent investigation. See Lendino, 970 F.2d at 1111-12 (summary judgment inappropriate where jury could conclude that defendant caused credit denial).

However, whether a jury could also conclude that plaintiff suffered any damages as a result of that denial is much less clear. Plaintiff claims that the Colonial Penn denial of insurance in August 1999 “is fatal to [Associates'] position that ‘no denial’ equals ‘no damages.’ ” Pl. Br. at 4. Associates, however, argues that even if the Colonial Penn insurance denial is properly considered part of the summary record, plaintiff “has not demonstrated that he was forced to obtain insurance at a higher premium, that he was unable to obtain insurance and suffered an uninsured loss, or that he was otherwise adversely affected by the insurance application denial.” Def. Reply Br. at 3. The Court is compelled to agree with Associates that no inference of economic damage resulting from the Colonial Penn insurance denial can reasonably be drawn from this record.FN7


FN7. However, as discussed below, Associates has not demonstrated that the Colonial Penn denial cannot be relied upon as a basis for plaintiff's claim of emotional damages.


Plaintiff also argues that the denial of the Fleet credit card in October 1999 is *285 sufficient evidence of damages to require trial. However, Associates has submitted an affidavit stating that “On August 27, 1999, Associates contacted the consumer reporting agencies to which it reports and instructed them to delete the trade line item relevant to the Account from plaintiff's credit report.” Hammond Aff. ¶ 6. Although plaintiff's brief raises hypothetical questions challenging the adequacy of this response, he does not identify any evidence suggesting that Associates did not follow its customary or satisfactory procedures or that Associates informed the consumer reporting agencies that the removal order was for some reason which might have prompted the agencies to leave the account on plaintiff's credit report (e.g., removal because of pending litigation). Thus, on this record, the Court finds that no reasonable trier of fact could conclude that the Fleet card denial in October 1999 was caused by Associates' negligence, as Associates had instructed the consumer reporting agencies to delete the account in the end of August 1999.FN8


FN8. Even were there were evidence that Associates' negligence in some way contributed to the Fleet denial, notwithstanding Associates' August 1999 letter, plaintiff has not identified any damage resulting from the denial itself. It is undisputed that plaintiff applied for the Fleet card at his counsel's direction, and plaintiff has not set forth any evidence that he suffered either economic or emotional damages as a result of Associates' conduct in connection with the denial.


Finally, plaintiff contends that because of the current practice of “prescreening” or “providing information about consumers who meet certain criteria to persons who wish to offer them credit,” Pl. Br. at 4, “harm necessarily results from incorrect adverse information from a furnisher, whether the reporting agency discloses (to a subprime creditor) or does not disclose (to a potentially favorable creditor whose advance selection criteria rejected Mr. McMillan out of hand) the incorrect information.” Pl. Br. at 13.

The Second Circuit considered a similarly speculative damages argument in Casella v. Equifax Credit Info. Servs., 56 F.3d 469, 474 (2d Cir.1995), in which the plaintiff had argued that he suffered actual damages because he had lost opportunities in the home loan mortgage market to take advantage of favorable interest rates and low housing prices as a result of erroneous credit reports. Although plaintiff had presented evidence that “he and his companion were actively seeking to purchase a home, and that at various times during [the year in which the erroneous information was on plaintiff's credit report] they had sufficient resources to obtain an 80 percent home mortgage in Casella's community,” id. at 475, the Second Circuit held that “in the absence of any evidence that [Casella] made an offer to purchase property or applied for a home mortgage, the ‘lost opportunity’ damages he alleged were too speculative.” Id. Here, acceptance of plaintiff's argument that harm necessarily results from dissemination of incorrect information to pre-screeners, absent any showing that he would otherwise have been offered or extended credit or that he suffered any economic or other damage as a result of the pre-screening, would require this Court to jettison the requirement of actual damages, in contravention of both the statutory language and Second Circuit precedent.



2. Emotional distress damages

[7] It is well-settled that actual damages under the FCRA “may include humiliation and mental distress, even in the absence of out-of-pocket expenses.” Casella, 56 F.3d at 474 ( citing *286 Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir.1995); Fischl v. General Motors Acceptance Corp., 708 F.2d 143, 151 (5th Cir.1983); Thompson v. San Antonio Retail Merchants Ass'n, 682 F.2d 509, 513 (5th Cir.1982); Bryant v. TRW, Inc., 487 F.Supp. 1234, 1240 (E.D.Mich.1980), aff'd, 689 F.2d 72 (6th Cir.1982)).

In Casella, the Second Circuit upheld the grant of summary judgment in favor of a credit reporting agency where the plaintiff had presented no evidence that the defendant had provided the plaintiff's credit report to any third party during the time period in which the defendant credit reporting agency included incorrect information on the plaintiff's credit report. FN9 Thus, plaintiff's argument “boil[ed] down to the bare contention that he is entitled to damages for pain and suffering simply because he knew of an inaccurate and potentially damaging item in his credit report.” 56 F.3d at 475. The Second Circuit rejected that contention, and while declining to reach whether a cause of action existed under the FCRA absent a denial of credit, held that “we do not believe a plaintiff can recover for pain and suffering when he has failed to show that any creditor or other person ever learned of the derogatory information from a credit reporting agency.” Id. FN10


FN9. Casella involved an alleged FCRA violation by a consumer reporting agency, governed by § 1681e, rather than by a furnisher of credit information, such as Associates here. Whether the Casella requirement that a third party have seen the derogatory misinformation would be met in a furnisher liability case when the furnisher disseminated the inaccurate information only to a consumer reporting agency need not be resolved here because plaintiff's credit report reveals that numerous entities accessed his report during the time period in which Associates' misinformation allegedly was present on plaintiff's credit report, including Colonial Penn, Household Bank, Capital One, and Citibank Visa.


FN10. Thus, in the Court's view, neither plaintiff nor defendant properly characterizes the holding of Casella. Contrary to plaintiff's assertions, Casella does not stand for the proposition that a denial of credit is not necessary to make out a FCRA violation, and contrary to defendant's assertions, Casella does not itself require a denial of credit to make out a FCRA violation. Instead, Casella stands for the proposition that recovery under the FCRA for pain and suffering is precluded where the plaintiff cannot show that a creditor was aware of the inaccurate information, because mere knowledge by a plaintiff of potentially damaging credit information is insufficient FCRA damages.


[8] Associates argues that it is entitled to summary judgment because there is no evidence of any emotional distress suffered by plaintiff caused by its conduct. However, drawing all inferences in the light most favorable to plaintiff, the evidence in the record is equivocal as to whether plaintiff suffered emotional distress as a result of Associates' conduct, thus precluding entry of summary judgment on the absence of damages.FN11


FN11. Because a reasonable jury could conclude that the Colonial Penn insurance denial resulted from misinformation negligently supplied by Associates this Court need not resolve the question left open in Casella, of whether a denial of credit or other adverse action is necessary to sustain a claim for damages for emotional distress under the FCRA. Cf. Guimond, 45 F.3d at 1333 (holding that inaccuracies in the credit report alone are sufficient to justify an award of damages for the embarrassment stemming therefrom absent any denial of credit); Dalton v. Capital Assoc., 257 F.3d 409, 418-19 (4th Cir.2001) (holding that where a plaintiff alleged that “he suffered emotional distress and loss of reputation as a result of the false report,” summary judgment was inappropriate on plaintiff's FCRA claim against a consumer reporting agency alleging negligence in reporting his criminal history to a prospective employer even where the undisputed evidence showed that the employer did not hire the plaintiff for reasons unrelated to the false report).


*287 Plaintiff's deposition testimony indicates that he was humiliated only by the Hampton Hotel incident, which occurred in 1998, prior to the alleged negligence by Associates in investigating the disputed information, and thus cannot establish damages caused by Associates. However, in response to a question about mental anguish, plaintiff replied “Well, like, how did this happen, why would someone do that,” and clarified that he was referring to “the credit, my credit being bad. I pay my bills. So I just didn't understand why that was happening.” Pl. Dep. at 62-63. Thus, while a jury might conclude that this mental anguish, like plaintiff's humiliation, was related to the Hampton Hotel incident, such a conclusion is not compelled by plaintiff's general description of distress resulting from his bad credit, and a jury well could determine that plaintiff was referring to all the conduct which contributed to his bad credit rating, including Associates' alleged negligence in investigating the reported inaccuracy. Accordingly, although this is a close case, there is sufficient evidence in the record to permit a jury to conclude that plaintiff suffered actual damages caused by Associates' conduct, and summary judgment is therefore denied on plaintiff's FCRA claim.



C. Defamation and Misrepresentation Claims

Associates also has moved for summary judgment on plaintiff's state law defamation and misrepresentation claims. The FCRA, 15 U.S.C. § 1681h(e), expressly provides that “[e]xcept as provided in sections 1681n and 1681 o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy or negligence with respect to the reporting of information against···· any person who furnishes information to a consumer reporting agency ··· based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer.”

Courts that have considered the meaning of malice, in this context, “have borrowed the meaning of the term used in the context of libel litigation; in other words, an allegedly defamatory statement will be deemed to have been made with malice if the speaker knew it was false or acted with reckless disregard of its truth or falsity.” Whelan v. Trans Union Credit Reporting Agency, 862 F.Supp. 824, 833 (E.D.N.Y.1994) (citing Thornton v. Equifax, Inc., 619 F.2d 700, 705 (8th Cir.1980); Wiggins v. Equifax Services, Inc., 848 F.Supp. 213, 223 & n. 17 (D.D.C.1993)). Willful, in turn, has been defined as “requiring a showing that the agency knowingly and intentionally committed an act in conscious disregard for the rights of others.” Id. (citing Wiggins, 848 F.Supp. at 219; Stevenson v. TRW Inc., 987 F.2d 288, 293-94 (5th Cir.1993)).

[9] Construing the facts most favorably to plaintiff, Associates' sole investigation involved comparing plaintiff's name and Social Security number to that of the account holder, and reporting the account as belonging to plaintiff, when in fact the account holder had a different address, phone number, date of birth, employment address and work phone number. Although these facts are sparse, in the absence of any unrebutted evidence from Associates as to the reasonableness of its actions in reporting the account as belonging to plaintiff, the Court cannot say that no jury could conclude that Associates acted with reckless disregard for the truth or falsity of the information it reported. Thus, Associates is not entitled to summary judgment on plaintiff's defamation claim.

[10] Finally, Associates argues that it is entitled to summary judgment on plaintiff's*288 misrepresentation claim because a cause of action for misrepresentation only lies where the defendant makes a false representation as a statement of fact, knowing it was untrue, and for the purpose of inducing plaintiff to act, and where plaintiff does in fact act upon the representation. Def. Br. at 8 ( citing Statewide Grievance Comm. v. Egbarin, No. 19801, 2000 WL 33116077, at *4 (Conn.App. Jan.23, 2001)). Plaintiff's terse response that Associates “misses the point” that it “made the representation through the credit reporting agencies,” Pl. Br. at 22, does not address the undisputed fact that here plaintiff never believed the misrepresentation made by Associates nor relied upon it in any way. Cf. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 357, 464 A.2d 795 (1983) (describing elements of misrepresentation claim). Associates' motion for summary judgment is therefore granted as to plaintiff's misrepresentation claim.



V. Conclusion

For the reasons set forth above, Associates' motion to strike [Doc. # 201] is DENIED IN PART as to Paragraphs One through Three and part of Paragraph Four and GRANTED IN PART as to the remaining part of Paragraph Four. Associates' motions for summary judgment [Doc. 163 and 182] are DENIED IN PART as to plaintiff's FCRA and defamation claims, and GRANTED IN PART as to plaintiff's misrepresentation claim.

IT IS SO ORDERED.


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In re Syndicom Corp.
268 B.R. 26
Bkrtcy.S.D.N.Y.,2001.
August 23, 2001

On the day of the continued hearing, however (which the Court had announced would be non-evidentiary, and at which the Court expected it would hear oral argument and any contentions by the Debtor as to the existence of any disputed issues of material fact), the Court was advised by the litigants that they had settled the underlying two-party dispute, on terms announced on the record at the hearing; that Mr. Takaya accordingly would not press the motion; and that they would execute a settlement stipulation prior to a continued hearing set for August 7.

At the continued hearing on August 7, counsel for Mr. Takaya reported that the Debtor had failed to sign the settlement stipulation, without explanation, and had also failed to pay use and occupancy for the Apartment for August. The Debtor did not appear. The Court advised that if it did not hear by noon the following day that a settlement stipulation had been signed and the use and occupancy had been paid, the Court would rule on the pending motion. The deadline was thereafter extended, by consent, in a conference call among representatives of the Debtor and Mr. Takaya, and the Court, to the morning of August 10, with the parties having once more been advised by the Court that if either the use and occupancy remained unpaid, or the stipulation had not been signed, the Court would immediately thereafter hear any witnesses on behalf of the Debtor, and oral argument.

Thereafter, on August 9, the Court received a letter from Stuart Jackson, Esq., the attorney for the Debtor, advising that while payment of the use and occupancy had been made, the Debtor had determined not to enter into the stipulation. The Court was further advised that the Debtor did not wish an evidentiary hearing, and wished only the opportunity to argue.FN6


FN6. The Debtor's lawyer wrote, among other things, “we do not believe an evidentiary hearing is required, and therefore Syndicom requests that Your Honor hear closing arguments at the Court's convenience.” (Ltr. of Stuart A. Jackson, dated Aug. 9, 2001).


Argument was initially scheduled for August 10, and then, over Mr. Takaya's objection, held instead on August 16, based on the unavailability of the Debtor's lawyer Mr. Jackson.FN7


FN7. On August 13, a time at which the Court was advised that the Debtor's lawyer Mr. Jackson was unavailable, another lawyer stating that he was speaking for the Debtor requested that Mr. Takaya be required to appear for live testimony. The Court denied the request. The Debtor had weeks to make such a request, if indeed the subject of the testimony was material, and its counsel had, as noted, advised the Court that “we do not believe an evidentiary hearing is required.” See n. 6 above. The Court also found it ironic that while the Debtor chose not to put on Mr. Ross as a witness, to discuss the circumstances surrounding the filing and otherwise, it chose to haul in Mr. Takaya instead. Aside from the laches and waiver bases for denial flowing from the foregoing, the Court regarded the request as harassment and a litigation abuse. After the Court issued its order, it received a second letter on behalf of the Debtor (apparently written before the Court's ruling had been received by the Debtor) advising that the request was withdrawn.

Ironically, at the continued hearing on August 16, the Court was informed that Mr. Jackson would not argue for the Debtor, and that Mr. Ross (who had been present on August 10), with the Court's permission, would instead. Though the premise on which the continuance was granted had evaporated, the Court permitted Mr. Ross to argue as requested.


Having considered the filings by and on behalf of the Debtor and Takaya, the documentary*33 exhibits FN8 and other undisputed facts, and oral argument, the Court determines the facts to be as follows.


FN8. In this connection, the Court did not consider documents for the truth of the matter asserted except to the extent that an appropriate hearsay exception existed; e.g., it considered pleadings and letters exchanged in the parties' lengthy litigation and disagreements with each other only to the extent that they were admissions under Fed.R.Evid. 801(d)(2). When considering rulings and orders of the various state courts, the Court took them into consideration for their effect, without making a determination as to whether they were correct; the Court assumed that with respect to each of them, at least one party would contend that the ruling was not correct, and the Rooker-Feldman doctrine, see n. 99 below, makes such an inquiry inappropriate. A credit report on Mr. Ross (Takaya Exh. 32) has been wholly disregarded as hearsay.

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McNamara v. Guazzoni
Not Reported in F.Supp.2d, 1999 WL 322648
S.D.N.Y.,1999.
May 20, 1999

Unfortunately, plaintiff Barbara McNamara's hearsay statement of what Newsom allegedly said in 1995 is the only so-called evidence that plaintiffs produced on behalf of the five claims and to support the pivotal allegation that the defendant obtained a credit report or consumer investigative report. Further, plaintiffs have made no showing that admissible evidence will be available at trial. Thus, the plaintiffs have failed to adduce any issues of fact which could allow a reasonable jury to return a verdict for the plaintiffs.


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In re Brevard
200 B.R. 836
Bkrtcy.E.D.Va.,1996.
September 26, 1996

Real estate agent's testimony as to what fellow employee told him regarding credit report's contents was admissible on the issue of what landlord was told by real estate agent and, ultimately, of whether landlord reasonably relied on tenants' rental application; testimony constituted inadmissible hearsay, however, to the extent offered to prove that tenants omitted information from their application.

There is no question that the rental application the debtors signed was false in that it did not list all the monthly payments they were then obligated to make. In addition, it was, if not literally false, at least seriously misleading-not the “whole” truth-in omitting any reference to the two pending loan applications. While there was obviously no assurance that either loan would be granted, there is no evidence that the debtors were the least bit doubtful of their ability to obtain the loans, both of which were in fact granted. Their credit at that time was good, Ms. Pierce testified, and under the circumstances it seems likely that the debtors fully expected both loans to be approved-indeed, without such approval, it does not appear that they would have been able to pay the required security deposit on the house they were hoping to rent from Mester.

The question remains, however, whether the omissions from the rental application were “material,” as required by § 523(a)(2)(B)(i). The exclusive use the landlord made of the information concerning the debtor's current monthly expenditures was to determine if the debtors could afford to make *844 the rent payments. This would obviously be a matter of justifiable concern to any prudent landlord. For the purpose of determining if the debtors could afford to rent the house, Mester used the information on the rental application to compute a “debt burden before rent.” This consisted of the ratio, expressed as a percent, of the debtors' required monthly payments (other than rent) to their gross monthly income. Their combined gross monthly income, as listed on the rental application, was $4,333.00. The $719.00 in monthly payments reflected on the application equated to a 17% burden. The six additional debts reported as being shown on the credit report added approximately $240 a month.FN10 This would have equated to a 22% debt burden. The omission from the application of $240 per month in debt payments clearly was not “material” to Mester, since even taking them into account, he agreed to rent to the debtors.


FN10. The debtors objected on hearsay grounds to Keene's testimony concerning the contents of the credit report. The credit report itself was not introduced at trial and is apparently not available. Keene's testimony as to what a fellow employee told him the report contained was admissible on the issue of what Mester was told and, ultimately, of whether Mester reasonably relied on the rental application. For that purpose, neither the credit report nor the fellow employee's statement to Keene were being introduced for the truth of the matters stated in the report. However, the hearsay objection is well-taken to the extent the testimony was offered to prove that $240 in monthly obligations were in fact omitted. The report itself may well have qualified under the business record exception to the hearsay rule. Fed.R.Evid. 803(6); U.S. Dept of HUD v. Cost Control Marketing & Sales Mgt of Va, Inc., 64 F.3d 920, 926 (4th Cir.1995) (MLS listing admissible as business record; foundation could be laid by real estate agent familiar with system). But Keene himself did not see the credit report; his only information as to its content came from what a fellow employee told him. The employee's statement to Keene was not shown to qualify under any exception to the hearsay rule. Consequently, it cannot be considered as establishing the truth of the matter asserted, that is, that the debtors omitted from the rental application six debts with monthly payments of approximately $40.00 each. However, Ms. Pierce admitted in her testimony at trial that certain debts had been omitted, and the court's findings are based on that testimony.


However, as noted above by the court in its findings, the monthly payment obligations omitted from the credit application aggregated significantly more than $240 per month. The evidence shows that at least six obligations totalling approximately $472.94 per month were omitted. Adding these to the $719 per month listed on the rent application gives a total of $1,191.94 per month, which equates to a 28% debt burden. This is at the high end of the range (25% to 30%) that Mester testified he would find acceptable. If one adds to this debt burden the monthly payments to Loudoun Credit Union and Commercial Credit Loan, Inc. that the debtors incurred simultaneously with the lease, their actual monthly debt burden came to $1,391 per month, or 32%, before rent. This is above the level that Mester testified he personally would have found acceptable, although it was within the range (25% to 35%) that Keene, his agent, testified that landlords in the area generally considered acceptable.

It was clear from Mester's testimony that debt burden, although by no means the only factor he considered in determining to rent to the debtors, weighed heavily in the decision. Mester was not a professional landlord with established criteria for extending credit, and in any event he was not required to accept a particular level of debt burden simply because other landlords might do so. At the same time, it seems unlikely that any particular percentage figure would have absolutely disqualified the debtors as tenants in his mind. Clearly, however, the higher the figure, the more carefully he would evaluate the totality of the circumstances. Given his testimony that he personally felt that a 25% to 30% debt burden was acceptable, and given the other factors-none of them negative-that he took into account, the court finds it highly probable that he would have rented to the debtors even had the rental application disclosed all six of the existing obligations that were omitted. The court also finds that, had he known about the two new debts being taken on at the same time as the lease, there is a significant likelihood that he would not have agreed to rent to the debtors. Since the omitted information could well have affected his decision, it was material within the meaning of § 523(a)(2)(B)(i).


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Luster v. Retail Credit Co., 575 F.2d 609, 615 (8th Cir.1978)
(testimony regarding republication of libelous credit report not hearsay because admitted solely to prove fact that words were said.)

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U.S. v. Owens
86 F.3d 1164
C.A.9 (Cal.),1996.
May 21, 1996

Appeal from the United States District Court for the Northern District of California, No. CR-94-00009-VRW; Vaughn R. Walker, District Judge, Presiding.
N.D.Cal.
AFFIRMED.

Before: ALARĆON, BEEZER, and RYMER, Circuit Judges.
MEMORANDUM FN**
FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.


*1 Alvin Pipkin Owens appeals his convictions on four counts of knowingly making false statements on loan applications submitted to four different federally insured financial institutions for the purpose of influencing the actions of the institutions on the loan applications in violation of Title 18, United States Code, Section 1014. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.



I

Owens argues that there was insufficient evidence to support his convictions because the government failed to introduce any evidence that Owens himself made the false statements on the four loan applications. We disagree.

Stefan Ammos identified Owens's signature on a deed of trust that Ammos had notarized in connection with Owens's purchase of a piece of property, and this same signature appeared on Owens's tax returns and Virginia driver's license. By comparing this signature with the signatures on the four loan applications, the jury could reasonably have concluded that Owens signed the loan applications. Moreover, Ammos testified that his company helped Owens prepare the home loan applications, and that it was his company's usual business practice for Owens to provide completed handwritten loan applications, and then to have the information contained on those applications typed onto printed loan applications that were then submitted to the banks. This evidence was sufficient to permit a rational jury to find that Owens made the false statements on the loan applications.



II

Owens argues that the district court abused its discretion by refusing to permit a stipulation that Owens had paid off the two automobile loans. We disagree.

Loss to the financial institutions is not an element of the offenses charged against Owens, and therefore the district court did not abuse its discretion by excluding as not relevant the stipulation that Owens repaid the loans. Nor can we say that the court abused its discretion by refusing to permit the stipulation under the so-called doctrine of “curative admissibility,” inasmuch as Karen Muth's testimony that Owens had defaulted on one payment due on the car loans did not leave a misleading impression that he never paid off the balance due on the loans. United States v. Doe, 656 F.2d 411, 412 (9th Cir.1981).



III

Owens argues that the district court abused its discretion by admitting into evidence certain loan documents in Guardian Savings and Loan's files, because they were hearsay not coming within the business records exception. We disagree.

Of the three documents to which Owens objected, the only one likely to have been material to the jury's verdict is the loan application. But Owens did not raise a specific hearsay objection to the application, and he therefore waived it. United States v. McQuisten, 795 F.2d 858, 865 (9th Cir.1986) (citing Fed.R.Evid. 103(a)(1)). Moreover, even if we treat his general objection as a specific hearsay objection, the district court did not abuse its discretion by overruling it. The government did not offer the loan application for the truth of the matters asserted in it, but rather to prove that Owens had made false representations about his employment and income. The loan application was therefore not hearsay and the business records exception was irrelevant.



IV

*2 Owens argues that the district court abused its discretion by admitting into evidence a credit report kept in Bank of America's loan files, because it was hearsay not coming within the business records exception. We disagree.

Owens failed to raise a specific hearsay objection to the credit report and therefore waived it. McQuisten, 795 F.2d at 865. Regardless, even if we again treat Owens's general objection as a hearsay objection, the court did not abuse its discretion by overruling it inasmuch as the document was admissible pursuant to the business records exception to the hearsay rule. In response to the court's questions, Muth testified that she personally ran the report as part of her job and kept the report in her files in keeping with the bank's normal course of business.
AFFIRMED.

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Quinn v. State
662 So.2d 947
Fla.App. 5 Dist.,1995.
July 14, 1995

The defense objected to the introduction into evidence of this credit report on the ground that it contained hearsay within hearsay and was irrelevant. A party must make a proper and timely objection at trial in order to preserve the point for appeal, as we have long held.FN7 In this case, a proper objection would have been that the state failed to provide a proper predicate for admission of the credit report as a business record pursuant to section 90.803(6) of the Florida Evidence Code. Hearsay can be admissible under numerous exceptions, one of which is the business records exception.


FN7. Anderson v. State, 546 So.2d 65 (Fla. 5th DCA 1989); Woodson v. State, 483 So.2d 858 (Fla. 5th DCA 1986); Gilling v. State, 443 So.2d 1024 (Fla. 5th DCA 1983); Thomas v. State, 424 So.2d 193 (Fla. 5th DCA 1983).




It is well established that although the person who made the report need not have personal knowledge of the matter recorded, the information contained in the report “must be supplied by persons with knowledge who are acting within the course of the regularly conducted business activity. If the initial supplier of information is not acting within the course of the business, the information in the record cannot qualify for admission. Statements from persons who are not acting within the regular course of *954 the business may be admissible if they fall within another exception.” Charles Ehrhardt, Florida Evidence Vol I (1994) at 625-6.

In summary, had the identity of the person making the statement been shown, the credit report could have been admitted as a business record. For example, if the credit analyst had been the source of the opinion, based on his examination of the business, that would have made it an admissible business record. Or, if the source had been Quinn, that would have made it partly admissible as an admission against interest. However, without identifying the source of the statement, as a person with knowledge, the credit report probably should not have been admitted.FN9


FN9. See Conley v. State, 620 So.2d 180 (Fla.1993).


The defense's objection that this was hearsay on hearsay does not specifically address this predicate problem. We are thus reluctant to fault the trial judge for having admitted it. Further, even if the objection had been properly made, the admission of the credit report appears to us to have played a very minor role in this trial. There was overwhelming evidence and testimony from numerous Markings' employees, as well as the Quinns, that Edward Quinn was running the company on a day-to-day basis, during the relevant time period. In fact, Quinn made no effort to prove otherwise. Admission of the credit report, even if erroneous, was harmless in the context of this trial. FN10


FN10. State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Steward v. State, 619 So.2d 394 (Fla. 1st DCA 1993); Dixon v. State, 589 So.2d 1011 (Fla. 4th DCA 1991), rev. denied, 599 So.2d 655 (Fla.1992); Erickson v. State, 565 So.2d 328 (Fla. 4th DCA 1990), rev. denied, 576 So.2d 286 (Fla.1991).


Quinn also argues that the trial court erred in allowing Sue Bell to testify that during the relevant time period Quinn directed her to send a letter to Broward County which falsely represented that he had no involvement in the management of Markings, so that Markings could qualify under that County's disadvantaged business enterprise program. Initially, we question whether this point was preserved for appeal. Counsel for the defense objected to the sufficiency of the notice required by section 90.404(2)(b) 1 only in passing, and said merely that the evidence was improper.


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U.S. v. Metallo
908 F.2d 795
C.A.11 (Fla.),1990.
August 09, 1990

Credit report on defendant's business prepared by credit-reporting service was admissible under business-records exception to the hearsay rule, where records custodian for credit service explained entries in report and testified about service's standard procedure of compiling such reports, notwithstanding that custodian had not personally prepared the report. 18 U.S.C.A. §§ 1029(a)(2), (b)(2), 1341.

Metallo next argues that the district court erred in admitting the Dun & Bradstreet report as an exception to the hearsay rule, see Fed.R.Evid. 802. The business-records exception, however, provides that a record, “if kept in the course of a regularly conducted business activity,” and if “it was the practice of that business activity to make the ··· record,” is admissible unless circumstances “indicate lack of trustworthiness.” Fed.R.Evid. 803(6). For a record to be admitted under Rule 803(6), “ ‘the person who actually prepared the documents need not have testified so long as other circumstantial evidence and testimony suggest their trustworthiness.’ ” United States v. Parker, 749 F.2d 628, 633 (11th Cir.1984) (quoting Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1259 (11th Cir.1983)). The district court permitted defense counsel to voir dire the witness, Dun & Bradstreet records custodian Frederick Sutter, before ruling on the hearsay objection. Sutter, who had not personally prepared the report, explained entries on the report and testified about Dun & Bradstreet's standard procedure for compiling such reports. After argument by both counsel, the district court stated that the key word used by the Government in response to the hearsay objection was “trustworthiness” and that the court would exercise its broad discretion to admit the report under the business-records exception to the hearsay rule.

Sutter's testimony supported the district court's finding that the document was trustworthy. The court's decision to admit the report was not an abuse of the court's considerable discretion in that area. See United States v. Jones, 554 F.2d 251, 252 (5th Cir.) FN5 (under business-records exception, trial courts have “wide discretion in determining whether the document offered has the inherent probability of trustworthiness”), cert. denied, 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142 (1977).


FN5. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.


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Auriemma v. City of Chicago
Not Reported in F.Supp., 1990 WL 36774
N.D.Ill.,1990.
March 02, 1990

MEMORANDUM OPINION AND ORDER


LEINENWEBER, District Judge.
*1 This suit (Aureimma II) arises out of alleged defense tactics employed by a defense attorney and investigator in a “Shakman” case entitled “Auriemma, et al., Plaintiffs, v. City of Chicago, et al., Defendants, No. 84 C 1224 (“Auriemma I”)”. Defendant, Donald Hubert (“Hubert”), is an attorney that was formally retained by the City of Chicago (“City”) to defend it and the other defendants in earlier Shakman case entitled “Maloney, Plaintiff, v. Washington, et al., Defendants, No. 84 C 689” (“Maloney I”). The investigator, Donald Berlin (“Berlin”), president of Investigative Consultants, Inc. (“ICI”), employed by Hubert to investigate Maloney, ordered consumer credit reports from a credit bureau on each of the Auriemma I plaintiffs apparently for use in the defense of the Auriemma I lawsuit.

Plaintiffs claim that by obtaining these credit reports under the circumstances here present, defendants violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.A. § 1681a et seq. The City and defendant Fred Rice (“Rice”), Superintendent of Police (collectively the “City defendants”), contend that not only did they not authorize or have knowledge of the credit reports but that Hubert was not even their lawyer in the Auriemma I lawsuit. Rice also contends that he is protected by qualified privilege. Hubert contends that he neither authorized nor had knowledge of Berlin's acquisition of the credit reports. All defendants except Berlin have moved for summary judgment.



FACTS FN1

Hubert, a lawyer in private practice, was retained by the City to represent the City defendants in a Shakman lawsuit filed by William Maloney (“Maloney I”). To aid in the defense, Hubert hired Berlin and ICI to do investigative work. Apparently it was Berlin's standard practice to order credit reports and use them to draft up financial profiles of opposing litigants. In any event, he did so on Maloney. When Maloney found out about it he amended his complaint by adding a Count V to Maloney I and filing a second lawsuit against the same defendants, alleging violation of FCRA and harassment in violation of the First Amendment (“Maloney II”). Maloney I ended in a judgment in favor of the defendants and Maloney II was settled.

Approximately two weeks after Maloney I was filed, eighteen high ranking police officers filed Auriemma I, which contained similar allegations to those made in Maloney I. Maloney, a short time later, amended his complaint to allege the demotions of the Auriemma plaintiffs in his Monell count. The defense of Auriemma I was assigned to another lawyer who was also in private practice.

Berlin, even though he had not been retained by either the City or the private counsel retained to defend Auriemma I, nevertheless, ordered credit reports on each of the Auriemma I plaintiffs.FN2 Auriemma II was filed after discovery in Auriemma I disclosed the existence of the credit reports. Hubert and Rice vigorously deny that they either authorized or knew of Berlin's actions in obtaining the credit reports on the Auriemma I plaintiffs.

*2 Plaintiffs contend in their briefs and in the Rule 12(m) Statement that Hubert was authorized by the City and Rice to work on the Auriemma I defense, and that Hubert was not only aware of the credit reports but that he authorized Berlin to obtain one on each of the plaintiffs. In support of its Rule 12(m) Statement, plaintiffs attach a number of documents that they contend prove Hubert's knowledge and authorization. These documents consist of the following:

Exhibit A. The affidavit of Ken Curtin (“Curtin”), a plaintiff

Exhibit B. Deposition testimony of Curtin

Exhibit C. Affidavit of Beverly Mann affirming a letter she wrote to plaintiffs' counsel

Exhibit D. Two memos written by Berlin to Hubert dated October 31, 1984 and November 5, 1984

Exhibit E. Letter from Berlin to Hubert dated October 24, 1984

Exhibit F. Berlin's purported time sheets for the Maloney case

Exhibit H. Purported statement for services and a memo from Berlin and ICI to Hubert

Exhibit I. Identical to the Memo in Exhibit H

Exhibit J. Ten items of correspondence between ICI and Hubert dated between December 20, 1984 and May 17, 1985

Exhibit K. Two contracts between Berlin and the credit bureau

Exhibit L. A title search of some property purportedly owned by Maloney and his wife



THE MOTION OF THE CITY DEFENDANTS

The City defendants have moved to dismiss plaintiffs' complaint on three grounds: qualified immunity for Rice; lack of responsibility for Berlin's unauthorized acts; and collateral estoppel. Plaintiffs respond claiming that there can be no qualified immunity because the FCRA was clear and unambiguous; whether Berlin had authority to gather the illegal financial information is a factual issue; and collateral estoppel does not apply under the circumstances here present.

Since it is clear under the facts presented that plaintiffs have failed to show an issue of fact as to Berlin's authority to gather the credit reports, it will not be necessary to address the issues of qualified immunity or collateral estoppel. What is starkly clear here is that the City defendants only retained Hubert to defend them in the Maloney I case. They were, in fact, represented by a different lawyer in the defense of the Auriemma I case. By no conceivable stretch of the imagination under these facts could Hubert be considered to have actual or implied authority from the City defendants to hire Berlin to obtain credit reports on plaintiffs in an entirely different lawsuit. The only sworn testimony offered by plaintiffs was that of Curtin, a plaintiff himself, who stated that Berlin told him on an occasion that he gathered the credit reports on the Auriemma plaintiffs and gave the information to Hubert at his request. Plaintiffs' Ex. A, ¶¶ 4, 6, and 7; Ex. B, pp. 19-20. However the affidavit and deposition testimony of Curtin are clearly inadmissible hearsay with regard to the City defendants. The out of court declarations of Berlin made to Curtin were not under oath and were not subject to cross-examination. The best that could be said is that they might possibly be considered to be the statements of Hubert's agent concerning a matter within the scope of the agency relationship between Hubert and Berlin, during the existence of the relationship. See Fed.R.Evid. 801(d)(2)(D). As such, they then might constitute an admission against Hubert.FN3 But the words do not thereby constitute an admission against the City defendants. Even if Berlin is considered an agent of Hubert and even if Hubert is considered an agent of the City defendants, the scope of such “sub-agency” relationship between Berlin and the City defendants could be no greater than the scope of the agency between Hubert and the City defendants which was limited to the defense of Maloney I and not defense of Auriemma I. Restatement, Second, Agency, § 5, Comment A. There is absolutely no evidence whatsoever that the City defendants intended to expand Hubert's representation beyond Maloney I to include any aspect of Auriemma I. Hubert denies that the City did so and plaintiff has put forth no evidence that Rice or any other employee of the City approved any such expanded representation. Consequently, any such actions on Hubert's part in authorizing Berlin would be oustide the scope of Hubert's agency relationship with the City and Rice. Oki America, Inc. v. Microtech Intern., Inc., 872 F.2d 312, 314 (9th Cir.1989).

*3 Having therefore disposed of the testimony of Curtin as inadmissible hearsay, one looks in vain to find any other evidence in the record that would tie the actions of Berlin to Hubert, much less find any evidence that Rice or any other City official had any knowledge at all about the obtaining of credit reports or any work that Berlin might have done in investigating the Auriemma plaintiffs.

Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552, (1986), says that summary judgment should be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” The FCRA provides civil liability for wilful obtaining credit reports under false pretenses. 15 U.S.C.A. §§ 1681n and 1681q. Plaintiffs therefore have the burden of proving that Rice or some other City official with authority to do so either personally obtained credit reports in violation of the FCRA or in some other way authorized an agent to obtain credit reports in violation of the FCRA. Plaintiffs have offered not one shred of evidence to prove either of these propositions. Accordingly, summary judgment is entered in favor of the City defendants. Plaintiffs have filed a crossmotion for summary judgment against the City defendants. Based on the foregoing ruling, the motion is denied.



HUBERT'S MOTION

The court has previously ruled that a representation in an application agreement to a credit reporting agency that a consumer report will be used for a purpose permitted by the FCRA, makes the obtaining of such a report to be used in the defense of an employment discrimination lawsuit a violation of Section 1681q. Maloney v. City of Chicago, 678 F.Supp. 703, 707 (N.D.Ill.1987). Berlin's applications for credit reports (plaintiffs' ex. K) promised to use them for a permissible purpose under the FCRA, but they were to be used in defense of Auriemma I. Therefore if the credit bureau furnished the reports on the Auriemma plaintiffs as a result of Berlin's applications contained in plaintiffs' Exhibit K, plaintiffs would have a cause of action under Sections 1681q and 1681n against the person or persons who made the wilful misrepresentation. Id.

Hubert's main argument in support of his motion for summary judgment is that plaintiffs have failed to come forward with any evidence that would tend to prove that Hubert either personally obtained or authorized any other person to obtain from a credit reporting agency a credit report under false pretenses. Specifically, Hubert denies under oath that he authorized or even knew that Berlin had secured the credit reports on plaintiffs from the credit bureau. Plaintiffs in paragraph 34 of their Rule 12(m) response rely on each of their exhibits listed on pages 3 and 4, infra, as proof that Berlin ran credit checks on the Auriemma plaintiffs with Hubert's authority and with his knowledge.

These documents however, with the exception of Exhibits A and B, discussed infra at pp. 5-6, for the most part do not even mention the Auriemma plaintiffs with the following exceptions. ICI, in its report dated October 31, 1984, recommended, after a reference to Auriemma I, that ICI conduct an analysis of certain positions in the police department with regard to their importance to the Superintendent. Exhibit D. ICI, in its report dated November 5, 1984, described an alleged claim of harassment of some of the Auriemma plaintiffs as a result of their filing suit against the City. Exhibit D. ICI time records mention “Auriemma” inconclusively on two occasions. Exhibit F. Berlin, in his letter to Hubert dated January 11, 1985, advises Hubert that ICI was “analyzing various records to establish the very close financial relationship between the Auriemma eighteen defendants [sic] and Mayor Jane Bryne.” (“Byrne”) Exhibit J.FN4 Jerry F. Willson (“Willson”), a former partner of Berlin's in ICI, in a letter dated May 17, 1985, wrote to Hubert, on behalf of Willson and Associates, Inc., that:

*4 “I learned there was, in fact, financial information gathered by Investigative Consultants, Inc. I also learned that the names and home addresses of each of the plaintiffs in the Auriemma case were supplied by your office. I also have some recollection of a call made by Mr. Berlin, from his home, to your office, requesting the names of some of the Auriemma 18 for the purpose of running the names through Chicago Title & Trust Company sometime last December.” (Exhibit J)

It is apparent that none of these documents, with the exception of Exhibits A, B, and the May 17, 1985 letter reference in Exhibit J, even remotely relates to possible obtaining of credit reports. Hubert contends that Exhibits A and B constitute inadmissible hearsay and Exhibit J (as well as the other exhibits) are unsworn, unauthenticated and constitute hearsay.FN5

The affidavit and deposition testimony of Curtin (exs. A and B), inasmuch as they purport to quote out-of-court statements of Berlin, constitute hearsay unless some provision of the Federal Rules of Evidence render them admissible. Since Berlin was retained by Hubert to perform investigative work the only provision that would appear to be applicable is Rule 801(d)(2)(D), i.e., statements by an agent or servant concerning a matter within the scope of the agency made during the existence of the relationship, constitute admissions and are not hearsay. Since it is admitted that Hubert retained Berlin and ICI to perform investigative duties with respect to Maloney I, there was an agency relationship between them and this relationship was in existence at the time Berlin obtained the credit reports on plaintiffs. (Plaintiffs' ex. G) The basic inquiry therefore is the scope of the agency relationship that existed between Hubert and Berlin. For an agent to subject his principal to liability his action must be within the “scope” of the agency. This is another way of saying that the principal must have “authorized” the act of his agent. Restatement, Second, Agency, § 7. Authority is the power of an agent “to affect the legal relations of the principal by acts done in accordance with the principal's manifestations of consent to him.” Id. “Apparent authority” which results from the principal's manifestations to third persons is distinguished from “authority” and is not involved here. Id., § 8. Authority may be express or implied, i.e., the manifestation may be made by words or other conduct. Id., Comment C.

The issue here is clear. Hubert has expressly denied that he authorized Berlin to investigate any of the Auriemma plaintiffs and has expressly denied that he authorized Berlin to obtain credit reports on them. Therefore we must decide whether Curtin's testimony that Berlin told him that Hubert did, in fact, so authorize him is admissible. Affidavits in opposition to a motion for summary judgment cannot contain hearsay, but they may include statements which would be admissible at trial under one of the exceptions to the hearsay rule. Prudential Ins. Co. v. Curt Bullock Builders, Inc. 626 F.Supp. 159, 165 (N.D.Ill.1985). If Curtin's testimony is not hearsay, a question of fact exists, precluding summary judgment. If it is hearsay, Hubert's denial stands alone and summary judgment is appropriate.

*5 Fed. Rules Evid. Rule 801(d)(2)(D) was designed to liberalize the common law rule that an agent could only bind his principal with his statements if he was expressly authorized by the principal to make the statements. Specific authorization to speak no longer need be shown. Notes of Advisory Committee on Proposed Rules, reprinted at Fed.Rules Evid.Rule 801, 28 U.S.C.A.; U.S. v. Portsmouth Paving Corp., 694 F.2d 312, 321 (4th Cir.1982). However an agent's statement concerning the fact of agency or the extent of his authority cannot bootstrap his testimony out of the hearsay exclusion required by Rule 802. There must be independent evidence that establishes the fact of agency and the extent of authority. Restatement, Second, Agency, § 285. This is because the existence of an agency relationship depends on the words or actions of the principal and not that of the agent. Prudential Ins. Co., at 165-66.

With these principles in mind, the answer to the issue here is clear. Plaintiffs have failed to produce any evidence establishing that Berlin had authority to undertake a financial investigation of themselves other than that of Curtin's testimony of what Berlin told him. Accordingly, Curtin's testimony and affidavit constitute inadmissible hearsay. Id. Since plaintiffs have failed to establish by competent evidence that Hubert authorized Berlin to obtain the credit reports, there is no issue of fact concerning their claim that Hubert vicariously violated the FCRA. The court therefore grants Hubert's motion for summary judgment.



CONCLUSION

For the foregoing reasons, the motion of the City defendants for summary judgment is granted. The motion of Hubert for summary judgment is granted. The crossmotion of plaintiffs for summary judgment is denied.

IT IS SO ORDERED.


FN1. The following are taken from the Rule 12(l) and (m) Statements of the parties.


FN2. Berlin testified at his deposition that he obtained the credit reports without the authorization of either Hubert or any other City official with the hope that his services might be retained for the defense of Auriemma I.


FN3. They do not. See supra, p. 11


FN4. At most this would reasonably involve checking Bryne's campaign finance reports at the County Clerk's office.


FN5. This letter was written after IC I had been discharged by Hubert and so was not written “during the existence of the relationship” and is therefore inadmissible hearsay. Fed.R.Evid 801(d)(2)(D).


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U.S. v. Castro
887 F.2d 988
C.A.9 (Cal.),1989.
October 23, 1989

5. TRW Records

[18] Castro and Cotter contend the admission of TRW credit reports into evidence under the business records exception to the hearsay rule, Fed.R.Evid. 803(6), was plain error because no foundation was laid and there was no showing that a person with knowledge of the contents of the reports had made the records. Appellants also argue admission of the reports violated their sixth amendment right to cross-examine witnesses.

These arguments are without merit. The TRW reports were introduced to show what information was available to Castro at the time he approved the loans, and to illustrate his reckless disregard for the Bank's interests by failing to act in response to the information disclosed by the reports.FN1


FN1. An expert witness for the government testified that of twenty-one loans made by Castro, two credit checks were performed prior to their approval, and none of the assets listed on the reports was verified.


The credit reports were not introduced for the truth of their contents. They were not hearsay. Fed.R.Evid. 801(c), and there was no violation of the appellants' sixth amendment confrontation rights.

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Canterbury v. West Virginia Human Rights Com'n
181 W.Va. 285, 382 S.E.2d 338
W.Va.,1989.
June 16, 1989

The second statement which must be evaluated is the statement which Rose made to appellant Richardson. Again, W.Va.R.Evid. 801(d)(2)(D) states that “[a] statement is not hearsay if ··· [t]he statement is offered against a party and is ··· (D) a statement by his [or her] agent or servant concerning a matter within the scope of his [or her] agency or employment, made during the existence of the relationship ···” FN4


FN4. Compare with the old West Virginia Rule which was

[t]he extrajudicial declarations of an agent, not made under oath, are not admissible in evidence as admissions against the interest of the principal unless the declarations relate to an act within the authorization of the agent in which the agent was engaged at the time the declarations were made.

Syl. Pt. 1, of Reynolds v. W.T. Grant Co., 117 W.Va. 615, 186 S.E. 603 (1936); See Coates v. Montgomery Ward & Co., 133 W.Va. 455, 57 S.E.2d 265, 266 (1949).


In Yohay v. City of Alexandria Employees Credit Union, Inc., 827 F.2d 967 (4th Cir.1987) and United States v. Portsmouth Paving Corp., 694 F.2d 312 (4th Cir.1982), the Fourth Circuit Court of Appeals, in cases similar to this case, examined the application of Fed.R.Evid. 801(d)(2)(D).FN5 In Yohay, the ex-husband of an attorney on retainer with the City of Alexandria Employees Credit Union (credit union) brought suit against the ex-wife attorney alleging that she either used or caused an employee of the credit union to use the computer at the credit union to obtain information from the credit bureau concerning her ex-husband. Yohay, 827 F.2d at 969. The hearsay statement involved the credit union's assistant manager, Andrea Martin (Martin), testifying that Donna Hatton (Hatton), an employee of the credit union, told her (Martin) that she (Hatton) had obtained a credit report on Yohay from the credit bureau at the request of the credit union's manager, who was a friend of the ex-wife's present husband. The ex-wife's present husband was secretary-treasurer of the credit union. Id. The court upheld the admissibility of both the statements, the statement made by Hatton to Martin and the statement made by the credit union manager to Hatton. The court specifically held that neither statement was hearsay since each was “ ‘concerning a matter within the scope of ··· [Hatton's] employment [and the credit union manager's employment], made during the existence of the relationship,····” Id. at 970 (citing Fed.R.Evid. 801(d)(2)(D)).


FN5. W.Va.R.Evid. 801(d)(2)(D) is patterned after the Federal rule and both rules are essentially the same.


Likewise, in Portsmouth Paving Corp., the Fourth Circuit upheld the admissibility of a secretary's statements under Fed.R.Evid. 801(d)(2)(D). 694 F.2d at 322. The court indicated that “specific authorization to speak need not be shown,” as long as “independent evidence establishing the existence of the agency [can] be adduced ···,” and the person was speaking about a subject within the scope of that person's employment. Id. at 321-22. FN6


FN6. But see Hill v. Spiegel, Inc., 708 F.2d 233 (6th Cir.1983) where the court held that statements made by managers regarding age discrimination were inadmissible hearsay since the managers involved had no involvement in the decision to discharge the plaintiff-employee and thus the statements were not made within the scope of the manager's employment. Id. at 237.

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Marting Realty, Inc. v. Marks
Not Reported in N.E.2d, 1986 WL 4647
Ohio App.,1986.
April 16, 1986

ASSIGNMENT OF ERROR III

“The trial court erred in admitting plaintiff's ‘Exhibit 13’ which was a hearsay statement and inadmissible under the Ohio Rules of Evidence.”

“Exhibit 13” is a credit investigation report of the credit worthiness of the buyers of appellant's property. Three employees of Marting Realty testified that such reports are routinely requested for all potential property purchasers. The trial court admitted the credit report into evidence over the hearsay objection of appellants. The trial court's apparent reason for admitting this report was that the report qualifed under the business record exception to the hearsay rule. Evid.R. 803(6).

*3 The credit report was admissible under another exception to the hearsay rule Evid.R. 803(17), which reads as follows:

“Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.”

Although the admission of credit reports should preferably be done under Evid.R. 803(6) or the business records exception, such reports are admissible under Evid. R. 803(17) when their trustworthiness is not in question. 4 Weinstein, Evidence (1985) 803-318, Section 803(17)[01]. Credit reports are held to be highly reliable by the the business world and should be admitted where such reliability is not challenged. Note, Mercantile Credit Reports as Evidence (1960), 44 Minn.L.Rev. 719.

The testimony in the instant case revealed that Marting Realty routinely obtained such credit reports. Appellants never attacked the report's reliability or trustworthiness. Under these circumstances this court concludes that the trial court did not abuse its discretion in admitting the credit report into evidence. Accordingly, assignment of error three is overruled.

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American Bank of Commerce v. Corondoni
169 Cal.App.3d 368, 215 Cal.Rptr. 331
Cal.App. 2 Dist.,1985.
June 18, 1985

Appellant countered with New Mexico case law. He argued that the tolling statute did not apply because respondent did not attempt to serve appellant during his absence from New Mexico. Appellant concurrently made a motion to strike, on evidentiary grounds, those portions of the declaration referring to defendant's statement and the credit report.

In its minute order of March 30, 1984, the trial court denied appellant's motion to vacate the judgment, but did not refer to the *371 motion to strike.FN2 Almost two weeks after the hearing, appellant filed a request for a statement of decision, which the court denied. The court similarly denied appellant's subsequent motion for reconsideration and his request for relief under section 473 of the Code of Civil Procedure.FN3


FN2. With respect to appellant's admission that he had been absent from New Mexico for more than five years, his counsel argued that the admission was made during the course of settlement negotiations. There was no evidence introduced to support this contention. Thus the trial court had no basis upon which it could possibly consider the merits of the motion and no error occurred. If the court fails to rule on an unclear objection, the error is considered waived. (See Witkin, Cal. Evidence (2d ed. 1966) Introduction of Evidence at Trial, § 1303, p. 1205.)

Appellant objected to the credit report on relevancy and hearsay grounds. The hearsay objection appears to have been well taken because the record before us does not clearly reveal that an appropriate foundation had been laid for the introduction into evidence of the credit report. However, this evidence was cumulative only and admission of the report constitutes harmless error.


FN3. Appellant requested relief under section 473 in the event that his request for a statement of decision was untimely.
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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