Document Type
Brief
Publication Date
12-6-2011
Keywords
consumer debt, debt buying, Maryland Rules of Evidence 5-902
Abstract
The petition for certiorari to the Maryland Court of Appeals by Loren Parker concerned the interpretation of Maryland Rule of Evidence 5-902, specifically the authentication of business records by debt buyers.
The central issue was whether a debt purchaser is bound by the same rules of evidence for the admissibility of business records as other Maryland businesses. Rule 5-902(b) provides for the self-authentication of records of a regularly conducted business activity. It requires that a party served with a 5-902(b) notice must object within 5 days. The petitioner debtor argued that this rule was being abused by debt buyers, like Pasadena, who often did nothing to verify the debt.
Business records have to be properly authenticated by someone with knowledge of the business to overcome hearsay objections. The amicus memorandum argues that debt buyers should not be allowed to self-authenticate the business records of a third party (the original creditor) as if those records were their own. It points out that the failure to object within five days does not bar other objections to the records at the time of trial. Also, any authenticating witness must have personal knowledge of the business, otherwise he or she is not competent to testify. Since the debt buyer has no personal knowledge of the business records practice of the creditor grantor, or of each intermediate debt buyer, it cannot lay a proper foundation for the admission of documents created by other entities. The memoranda urges the grant of certiorari to provide clarity to consumers and businesses about the requirements for self-authentication of records created by third-party predecessors in interest.
Disciplines
Consumer Protection Law
Comments
Memorandum of Amici Curiae in support of petition for Writ of Certiorari to the Maryland Court of Appeals.
Prepared under the direction of Professor Peter Holland.