Affidavits of debt buyer

[Sharing Lights]

Other decisions holding debt buyer affidavits and related documents insufficient:
1. Unifund CCR Partners v. Harrell, 2005 Conn. Super. LEXIS 2037 (Aug. 3,
2005): Failure to produce signed agreement or affidavit authenticating
purported agreement as that entered into with defendant results in denial of
summary judgment. Affidavit of “plaintiff’s legal coordinator” that “she has
access to the records of Unifund CCR Partners and therefore has personal
knowledge of the facts” not sufficient.
2. First Select Corp. v. Grimes, 2003 Tex. App. LEXIS 604 (Jan. 23, 2003):
summary judgment for debtor affirmed where there was no evidence that the
debtor used the credit card after First Select sent out an agreement
modification and no copy of the written agreement between the original
creditor and the consumer or the consumer’s acceptance of such agreement.
3. CACV of Colorado, LLC v. Cassidy, 2005 Conn. Super. LEXIS 2797 (Oct.
19, 2005); CACV of Colorado, LLC v. Acevedo, 2005 Conn. Super. 2796
(Oct. 19, 2005); CACV of Colorado, LLC v. Werner, 2005 Conn. Super.
LEXIS 1795 (Oct. 19, 2005); CACV of Colorado, LLC v. McNeil, 2005
Conn. Super. LEXIS 12794 (Oct. 19, 2005); and CACV of Colorado, LLC
v. Corda, 2005 Conn. Super. LEXIS 3542 (Dec. 16, 2005): court refused
applications to confirm arbitration awards where only document containing
arbitration clause was affidavit signed with signature stamp attaching form
agreement containing no dates or signatures; court also noted that NAF does
not provide that arbitrator find defendant has actual notice of demand for
arbitration. Accord, MBNA America Bank, NA v. Straub, 2006 N.Y. Misc.
LEXIS 1281 (Civ. Ct. May 25, 2006).

[Sharing Lights]

Illinois likewise holds that “A sufficient foundation for admitting business records
may be established through the testimony of the custodian of the records or another
person familiar with the business and its mode of operation.” In re Estate of
Weiland, 338 Ill. App. 3d 585, 600, 788 N.E.2d 811 (2nd Dist. 2003).
Anyone familiar with the business and its procedures may testify as to
the manner in which records are prepared and the general procedures
for maintaining such records in the ordinary course of business. Raithel
v. Dustcutter, Inc., 261 Ill. App. 3d 904, 909, 634 N.E.2d 1163 (1994)
(Cook, J., specially concurring). The foundation requirements for
admission of documents under this exception are that it is a writing or
record made as memorandum of the event made in the ordinary course
of business and it was the regular course of the business to make such a
record at that time. In re Estate of Weiland, 338 Ill. App. 3d 585, 600,
788 N.E.2d 811 (2003).

[Sharing Lights]

City of Chicago v. Old Colony Partners, L.P., No. 1-04-0551, 2006 Ill. App. LEXIS
187 (1st Dist. March 16, 2006).



If the records are those of business A, they can be treated as records of business B
only if A was authorized by B to generate the records on behalf of B as part of B’s
ordinary business activities. In Argueta v. Baltimore & Ohio, 224 Ill.App.3d 11, 12-
14, 586 N.E.2d 386 (1st Dist. 1991), appeal denied, 144 Ill. 2d 631, 591 N.E.2d 20
(1992), the court held:
A number of Illinois cases have held that documents produced by third
parties were inadmissible as business records. In each of these cases, the
documents were not commissioned by the business seeking to introduce
them into evidence, albeit the documents were retained in the business
files. International Harvester Credit Corp. v. Helland (1986), 151 Ill.
App. 3d 848, 503 N.E.2d 548 (minutes of board of director's meeting of
a company were not the business records of a second company); Pell v.
Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d
858 (letter from a manufacturer was not the business record of a second
manufacturer); Benford v. Chicago Transit Authority (1973), 9 Ill. App.
3d 875, 293 N.E.2d 496 (a note made by employee's private physician
was not the business record of employer).
By contrast, a business report generated by a third party has been held
to be admissible when it was commissioned in the regular course of
business of the party seeking to introduce it. Birch v. Township of
Drummer (1985), 139 Ill. App. 3d 397, 487 N.E.2d 798 (survey of an
engineering firm commissioned by county admissible as business record
of the county).
The key consideration is the authority of the third party to act on the
business' behalf. Where a third party is authorized by a business to
generate the record at issue, the record is of no use to the business unless
it is accurate and, therefore, the record bears sufficient indicia of
reliability to qualify as a business record under the hearsay rule. See also
N.L.R.B. v. First Termite Control Co., Inc. (9th Cir. 1981), 646 F.2d 424;
Fed. R. Evid. 803(6); M. Graham, Cleary & Graham's Handbook of
Illinois Evidence § 803.10, at 647 (5th ed. 1990).
Accordingly, we find that the trial court erred in its ruling that the
ultrasonic test reports were inadmissible. The reports were the business
records of B&OCT. Although the reports were generated by Calumet
and Conam, the tests were performed at the direction of the railroad in
the regular course of its business..
Accord, Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400; 830 N.E.2d 814 (1st
Dist. 2005).

[Sharing Lights]

Note that Illinois requires that “the sufficiency of an affidavit must be tested by a
motion to strike the affidavit (or by a motion to strike the motion for summary
judgment setting forth the objections to the affidavit).” Duffy v. Midlothian Country
Club, 92 Ill. App. 3d 193, 199, 415 N.E.2d 1099 (1st Dist. 1980).
Q. Beware of complaints with “generic” documents attached. See Palisades v.
Gonzales,

What is required is the agreement between plaintiff and defendant.