Commercial Litigation and Arbitration

Documents Obtained from FDIC (or Other Governmental) Website Are Self-Authenticating and Properly Considered on Summary Judgment — Judicial Notice OK — (Official Documents of the Agency, Not Third Party Documents Posted on Site)

Avery v. LPP Mortgage, Ltd., 2015 Tex. App. LEXIS 11136 (Tex. Ct. App. Oct. 29, 2015):

Appellant, Allan R. Avery, appeals the trial court's grant of summary judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed by Avery. We affirm in part and reverse and remand in part.

***2."the Office of Thrift Supervision ordered the closing of New South . . . and the Federal Deposit Insurance Corporation ("FDIC") was appointed Receiver for New South"

In his affidavit, Martin states that his knowledge regarding the above-referenced statements was based on several documents [*6]  that were attached to his affidavit. Specifically, Exhibit A to Martin's affidavit is what Martin describes as a "true and correct copy of the Notice . . . that on December 18, 2009, the FDIC as Receiver for New South sold certain assets to Beal Bank and all rights arising from those assets[,]." and is a printout of a press release from the FDIC website. It is from the same website as Exhibit 2 of Victor C. Serafino's1 affidavit, which was also attached as LPP's summary judgment evidence. In his affidavit, Serafino explains how he accessed the FDIC website and provides a URL address for the same.

1   Serafino was an attorney for LPP at trial, and his affidavit explains how many of the documents filed in support of LPP's motion for summary judgment were accessed through government websites.

Exhibit B to Martin's affidavit is what he alleges is a "true and correct copy of the redacted Purchase and Assumption Agreement[.]" Exhibit B to Martin's affidavit is the same as Exhibit 3 of Serafino's affidavit, and Serafino explains that he obtained the Purchase and Assumption Agreement by accessing the FDIC's website, and again he provides a URL address for the same.

On appeal, Avery argues that "[n]either Exhibit [*7]  "A" nor Exhibit "B" [to Martin's affidavit] were properly identified or authenticated[,]" and, as such, have no evidentiary value. He also objects to Serafino's affidavit, particularly Exhibits 1, 2, 3, and 4--all printouts from the FDIC's website--for the same reason.

We begin by noting that a properly authenticated affidavit, such as those by Martin and Serafino, in combination with an unauthenticated attachment, is a defect in form and can be waived. Kotzur v. Kelly, 791 S.W.2d 254, 256 (Tex. App.--Corpus Christi 1990, no writ); Oglesby v. Land Title Co. of Dallas, No. 05-91-00076-CV, 1992 WL 35820, *3 (Tex. App.--Dallas Feb. 27, 1992, no writ) (not designated for publication). Because Avery did not obtain a ruling on this objection as to form, his complaint about the lack of authentication of the exhibits is waived. See Dolcefino, 19 S.W.3d at 925-27.

Additionally, we note that the documents in both challenged exhibits were obtained from the FDIC's website. Texas Rule of Evidence 902(5) dictates that "[b]ooks, pamphlets, or other publications purporting to be issued by public authority" are self-authenticating. Id. Thus, under Rule 902(5), documents printed from government websites are self-authenticating. Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250, 259 (Tex. App.--Corpus Christi 2014, no pet.). "[B]ecause records and information located on government websites are self-authenticating under Federal Rule of Evidence 902, [a] court may take judicial notice of them." Newton v. Holland, 2014 WL 318567, at *1 n.1 (E.D. Ky, Jan. 29, 2014) (mem. op.). For the same reason, the Fifth Circuit has determined that courts may take judicial notice of governmental [*8]  websites. See Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) (taking judicial notice of approval by the National Mediation Board published on the agency's website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam) (taking judicial notice of Texas agency's website); see also O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 2007 WL 2421754, at *6 (10th Cir. Aug. 28, 2007) ("It is not uncommon for courts to take judicial notice of factual information found on the world wide web.") (citations omitted); Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003) (taking judicial notice of information on official government website pursuant to Rule 201). Federal courts have taken judicial notice of other courts' websites. See, e.g., Graham v. Smith, 292 F. Supp. 153, 155 n.2 (D. Me. 2003) (taking judicial notice of pleadings located on the internet); Anderson v. Cal. Bd. of Prison Terms, No. CIV-04-1172, 2007 WL 404900, at *1 (E.D. Cal. Feb. 2, 2007) (unpublished) (taking judicial notice of records from official website for California Appellate Courts); Collier v. Dretke, No. Civ.A 4:05CV379Y, 2005 WL 1429738, at *1 n.5 (N.D. Tex. June 17, 2005) (unpublished) ("The Court . . . takes judicial notice of the disposition of Collier's seven writ applications in the Texas Court of Criminal Appeals through a search on its website."); Booker v. Taft, No. 7:03-CV-263-R, 2004 WL 1253410, at *1 (N.D. Tex. June 8, 2004) (unpublished) (taking judicial notice that petitioner's state habeas petition remained pending based on the Texas Second Court of Appeals' website). Indeed, federal courts have judicially noticed purchase and assumption agreements because they were publicly available through the [*9]  FDIC's website. Pascal v. JPMorgan Chase Bank, NA, 2013 WL 878588, at *4 fn.4 (S.D. N.Y., Mar. 11, 2013); see also Lemperle v. Washington Mut. Bank, No. 10cv1550-MMA(POR), 2010 WL 3958729, at *3 (S.D. Cal. Oct. 7, 2010) (taking judicial notice of order from the Office of Thrift Supervision closing bank and appointing the FDIC as Receiver, and the Purchase and Assumption Agreement entered between the FDIC and purchasing bank because "government reports and publications, including information on the Department of the Treasury and the FDIC's official websites is judicially noticeable"); Yetiv v. Chase Home Fin., LLC, 2012 WL 112597, at *4 n.1 (S.D. Tex. Jan. 11, 2012) (holding that information on FDIC's official website was subject to judicial notice).

Because the record demonstrates that the exhibits that Avery contends were not properly authenticated are, in fact, self-authenticating documents accessed through a government website, the trial court could have properly considered them as summary judgment evidence.


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