The Business Records Exception to the Hearsay Rule

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When a bank assigns a mortgage to another bank, the assignor typically provides a loan payment history to the assignee as part of the transfer. If the assignee later brings suit to foreclose the mortgage, it is typical to seek foreclosure via a Motion for Summary Judgment. In support of such a motion, we include an affidavit from a bank officer testifying to the amount of the debt. Sometimes, opposing counsel will challenge the bank officer’s ability to testify as to the assignor bank’s payment records. They might argue that an affidavit that puts forth the former bank’s records is inadmissible hearsay. However, there is an exception to the hearsay rule called the business records exception. For an affidavit to pass muster under this exception, the record relied upon must be shown to be made at or near the time of the event, by or from information from a person with knowledge, kept in the ordinary course of a regularly conducted business activity, and that it was a regular practice of that business to make such a record. Additionally, the bank officer must be able to testify that the assignee bank’s records incorporated payment data from the assignor, that the affiant has worked on the loans at issue and verified the payment data, and describe the assignee’s verification process. These elements are necessary for a bank officer to testify to the outstanding indebtedness at the time of the transfer. We often point out that the bank has provided monthly statements to the borrower in an effort to verify the debt and inform the borrower of the outstanding balance. In some cases, it may be necessary to depose the borrower to determine whether there is any valid reason for them to challenge the loan balance, or whether the challenge is merely a delaying tactic.

 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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