Personal Knowledge Regarding Business Records May Be Inferred from Witness’s Position with Company, and Custodian May Testify as Corporate Representative — No Such Inference of Personal Knowledge Where Counsel Sponsors Internet Exhibit

Lusk v . Wells Fargo N.A., 2012 U.S. Dist. LEXIS 70369 (E.D. Tex. May 21, 2012):

This is a dispute over an attempted foreclosure on certain real property located at 6738 County Road 593, Nevada, Collin County, Texas. ***

First, Plaintiffs object to portions of the affidavit of Jennifer Robinson***

Federal Rule of Civil Procedure 56(c)(4) requires an affidavit to be made on "personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." However, personal knowledge may also be inferred from the affiant's position with the company. DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005). A custodian of records is competent to testify from the business records as a corporate representative. See Fed. R. Civ. P. 803(6); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000). Robinson is the Vice President of Loan Documentation for Wells Fargo Bank, N.A. (Dkt. #18-1, ¶ 2). Further, she is a custodian of records, and testifies that the records are kept by Wells Fargo in the regular course of business. Id., ¶ 3. As a result of her review of the records in this case, it can be reasonably inferred that she has personal knowledge of the facts applicable to Plaintiffs' loan. Finally, the Court finds that none of the statements contained in paragraphs 5-8 are inadmissible hearsay. Therefore, Plaintiffs' objections to the affidavit of Jennifer Robinson are overruled, and Plaintiffs' motion to strike (Dkt. #19) is denied.

Defendant objects to paragraphs 1-6 of the affidavit of Gary A. Armstrong ("Armstrong") (Dkt. #26 at 1). Defendant contends that these paragraphs contain hearsay, lack a proper foundation and authentication, and are not based on personal knowledge. Plaintiff does not refute these assertions.

As stated above, Federal Rule of Civil Procedure 56(c)(4) requires an affidavit to be made on "personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." The paragraphs at issue indicated that Armstrong used the internet to obtain information from the Mortgage Electronic Registration System ("MERS") regarding Plaintiffs' loan. Armstrong is Plaintiffs' attorney in this dispute. Armstrong is not an officer or employee of the MERS system, and cannot testify regarding the authenticity or accuracy of such information. Armstrong's affidavit states, "While I cannot vouch for the accuracy of the MERS system, or the truth of the contents of the system, I am personally familiar with how to search for a property and loan on its system, having done so many times" (Dkt. #19-1, ¶ 4). The Court finds that these portions of the affidavit and the attached document are inadmissible hearsay and lack an appropriate foundation. See In re Homestore.com, Inc., 347 F. Supp. 2d 769, 782-83 (C.D. Cal. 2004) (holding that plaintiffs failed to authenticate documents printed from defendant's website without a statement or affidavit from someone with knowledge.). Therefore, the Court finds that Defendant's objections to paragraphs 1-6 are sustained.

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