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Business records exception and modern mortgage servicing practices
charsetndows-1252
Russell, Bankruptcy Evidence Manual, 803:12 has a great discussion.
Sounds like In re Vargas, 396 BR 511 (Bankr. C.D. Cal 2008) has this issue nailed; I don't think the declarant is even a "custodian or other qualified witness"....
Jason
JASON WALLACH, ESQ.
Gladstone Michel Weisberg Willner & Sloane, ALC
4551 Glencoe Avenue, Suite 300
Marina del Rey CA 90292-7925
Tel: (310) 821-9000
Direct: (310) 775-8725
Fax: (310) 775-8775
Email: jwallach@ gladstonemichel.com
www. gladstonemichel.com
On Aug 29, 2012, at 5:17 PM, Alik Segal wrote:
> Motion for Relief from Stay. Declaration of Creditor's Bankruptcy Analyst states in reference to bank records concerning the statement of debtor's account:
>
>
> 1. 1. I have gained knowledge of them from the business records of Movant,
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> a. WHICH WERE MADE AT OR ABOUT THE TIME OF THE EVENTS RECORDED, AND
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> b. WHICH ARE MAINTAINED IN THE ORDINARY COURSE OF MOVANTS BUSINESS AT OR NEAR THE TIME OF THE ACTS, CONDITIONS OR EVENTS TO WHICH THEY RELATE.
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> 2. Any such document was prepared IN THE ORDINARY COURSE OF BUSINESS OF MOVANT BY A PERSON WHO HAD PERSONAL KNOWLEDGE OF THE EVENT BEING RECORDED AND HAD OR HAS A BUSINESS DUTY TO RECORD ACCURATELY SUCH EVENTS.
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> It sounds like the Bankruptcy Analyst is reading the computer screen and copying down numbers from that computer screen into the declaration. She has no idea about how the integrity of the database is maintained. She has no idea who and when made these entries and whether these entries were subsequently altered. This declaration is based on a leap of faith, not personal knowledge.
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> Could anyone suggest cases on this issue?
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>
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>
>
> --
> Alik Segal
> Alik.Segal@gmail.com
> 310-362-6157
> California Central District
>
>
charsetndows-1252
Russell, Bankruptcy Evidence Manual, 803:12 has a great discussion.Sounds like In re Vargas, 396 BR 511 (Bankr. C.D. Cal 2008) has this issue nailed; I don't think the declarant is even a "custodian or other qualified witness"....Jason
-- JASON WALLACH, ESQ.Gladstone Michel Weisberg Willner & Sloane, ALC4551 Glencoe Avenue, Suite 300Marina del Rey CA 90292-7925Tel: (310) 821-9000Direct: (310) 775-8725Fax: (310) 775-8775Email: jwallach@ gladstonemichel.comwww. gladstonemichel.com
On Aug 29, 2012, at 5:17 PM, Alik Segal wrote:
The post was migrated from Yahoo.
Motion for Relief from Stay. Declaration of Creditor's Bankruptcy Analyst
states in reference to bank records concerning the statement of debtor's
account:
1. 1. I have gained knowledge of them from the business records of
Movant,
a. WHICH WERE MADE AT OR ABOUT THE TIME OF THE EVENTS RECORDED, AND
b. WHICH ARE MAINTAINED IN THE ORDINARY COURSE OF MOVANTS BUSINESS AT
OR NEAR THE TIME OF THE ACTS, CONDITIONS OR EVENTS TO WHICH THEY RELATE.
2. Any such document was prepared IN THE ORDINARY COURSE OF BUSINESS
OF MOVANT BY A PERSON WHO HAD PERSONAL KNOWLEDGE OF THE EVENT BEING
RECORDED AND HAD OR HAS A BUSINESS DUTY TO RECORD ACCURATELY SUCH EVENTS.
It sounds like the Bankruptcy Analyst is reading the computer screen and
copying down numbers from that computer screen into the declaration. She
has no idea about how the integrity of the database is maintained. She has
no idea who and when made these entries and whether these entries were
subsequently altered. This declaration is based on a leap of faith, not
personal knowledge.
Could anyone suggest cases on this issue?
Alik Segal
Alik.Segal@gmail.com
310-362-6157
California Central District
Motion for Relief from Stay. Declaration of Creditor's Bankruptcy Analyst states in reference to bank records concerning the statement of debtor's account:
The post was migrated from Yahoo.