STATE OF MISSOURI
COUNTY OF /
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IN THE CIRCUIT COURT OF / COUNTY, MISSOURI
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Plaintiff,
vs.
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Case No. /
Division II
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Defendant.
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DEFENDANT'S TRIAL BRIEF
Plaintiff's Exhibit 1 is not admissible pursuant to Section 490.692,
commonly known as the business records exception, for the following
reasons. The first and most glaring reason is that the affidavit submitted
by the Plaintiff failed to conform to the elementary and foundational
requirements of Section 490.692 in that the affidavits, although signed
under oath stating that there were attached / pages of business records,
in fact, do not have / pages of business records. When this was pointed
out to plaintiff's counsel, plaintiff's counsel asked to amend the affidavit.
Of course, plaintiff's counsel not being the author of the affidavit could
not amend the same. Therefore, first and foremost, the plaintiff has
failed to comply with the statute and that in and of itself should be
enough to cause the court to sustain defendant's objection to the same
into evidence. Plaintiff seems to be under the impression that Section
490.692 is a cure all when, in fact, the statute plainly states that the
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admission of the same are "subject to other substantive or procedural
objections". The whole purpose of Section 490.692 is to alleviate the
necessity of having the custodian of the records testify, however, Section
490.692 is still subject to substantive or procedural objection. The
defendant lodged said substantives and procedural objections in the case
at bar. First of all, the defendant stated that the foundational
requirements were not met, as pointed out above, and the affidavit on its
face is incorrect. Secondly, the business records exception to the
hearsay rule allows the introduction into evidence of records qualified as
business records without the personal appearance of those who prepared
the records. See Helton v. Director of Revenue, 944 S.W.2d 306. Helton
went on to state, however, that the business record exception does not
guarantee that statements made out of court by third parties to the
person who prepared the report have evidentiary value as competent
evidence when properly objected to. In the case at bar, it is obvious on
the face that the affidavit offered by the plaintiff contains hearsay and
double hearsay. The first instance is that attached to the affidavit are
not only the alleged records of Providian National Bank but the alleged
records of First Union, which defendant is assuming is some type of
financial institution. Page 3, entitled an Officer's Certificate, contains
double hearsay, an objection made by the defendant at trial. Plaintiff, in
his Memorandum, attempts to testify and bolster the record. However,
the only evidence introduced by plaintiff at trial was the affidavit itself
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and the admission of one request for admissions. There was no
testimony other than the above. It is interesting to note that although
plaintiff's affidavit fails to comply with the statute in that it has the
incorrect number of pages attached, the plaintiff nevertheless invites the
Court to disregard the records from First Union. In fact, plaintiff has
conceded by said argument that said affidavit failed to comply with
statutory requirements.
Defendant disagrees with plaintiff's interpretation of Section
362.431 and would invite the Court to read the statute as it is
defendant's contention that bank records must be certified in accordance
with Section 362.413, whether they are copies, reproductions, facsimiles
or enlargements. If defendant's interpretation is correct then the plaintiff
also failed to comply with Section 362.413.
Defendant contends that plaintiff's records, regardless of which
portion of them may belong to the plaintiff and which portion may belong
to someone else, are, in fact, for the most part summaries. There is, in
fact, no evidence whatsoever of any previous balances. There is no
evidence contained in the records of how this alleged debt was incurred.
There are no credit card receipts. There are no cancelled checks but
simply an account summary stating that the plaintiff owes several
thousand dollars. The first objection was that these account summaries
were without proper foundation and since no supporting documents were
offered, the account summaries, in and of themselves, are inadmissible.
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The basic rule has been set out in Albers v. Hemphill Contracting
Company, 740 S.W.2d 660 (Mo.App. 1987), which stated "a summary of
voluminous records may properly be admitted into evidence if the
summary's proponent establishes that the records which the summary is
based upon are themselves admissible into evidence and available to the
opposing party for inspection". In the case at bar, the plaintiff simply
failed to adhere to this rule of law.
Defendant also pointed out to the court that the plaintiff failed to
comply with Section 408.555, known as the right to cure law. That
section states that after a default consisting only of the borrowers failure
to make a required payment, a lender, because of that default, may
neither accelerate maturity of the unpaid nor take possession of or
otherwise enforce a security interest until 20 days after notice . . . In
this case, plaintiff offered no such compliance with Section 408.555.
The use of the specimen document, once again, points out that
Exhibit 1, the affidavit offered by the plaintiff, is inaccurate in that,
indeed, the contractual agreement between the plaintiff and defendant, if
in fact one ever existed, was not part of the affidavit and rather was a
specimen. Once again, the plaintiff attempts to testify through their
attorney by stating that they do not have the originals. There is
absolutely no evidence of that whatsoever outside plaintiff's counsel's
unsworn assertion which is not admissible.
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Defendant's counsel did not contend that defendant's signature on
the request for admissions was not her signature or was not genuine and
if the Court misinterpreted that, the defendant would gladly withdraw
that particular objection because it is not defendant's position that the
defendant's signature was not genuine on the request for admissions in a
different case. From this, objection went to the admissibility or the
manner in which the plaintiff attempted to introduce into evidence a
request for admission made in a different case than the one being tried.
It is defendant's position that the request for admission in a different
case is not a judicial admission in the case that was tried to the court.
This very well may go to the weight of the evidence, as pointed out by
plaintiff's attorney, rather than its admissibility but defendant wanted
the court to be aware of the objection. The objection, not being the
authenticity of the defendant's signature to the request for admission but
of what value that admission would be to plaintiff in the case at bar. If,
in fact, defendant made an objection to the authenticity of defendant's
signature on the request for admission, the defendant will withdraw that
particular objection as requested by plaintiff in his trial brief.
CONCLUSION
The Court should enter a Judgment for defendant and against
plaintiff for the reason that the burden of proof was on plaintiff to prove
up their case. Plaintiff, by choice, decided to rely solely upon the
documentary evidence, being plaintiff's Exhibit 1 and 2, although
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plaintiff's Exhibit 2 is admissible, it has very little or no value or weight
because the request for admission is involved in another case in which
the plaintiff failed to prove what was actually being admitted. Even
assuming plaintiff could prove through the request for admission that it
was defendant's signature on one of the documents contained in
plaintiff's Exhibit 1, nevertheless plaintiff's Exhibit 1 is wholly
inadmissible for the reasons aforesaid but particularly and most glaring
for the reason that the affidavit, pursuant to Section 490.692, is to do
away with the necessity of having a live person identify the business
records. In this case, the affidavit was incorrect from the beginning. It
has the wrong number of pages. It contained records other than those of
the plaintiff and it contains summaries, all of which defendant properly
objected to.
Regardless of the admissibility of plaintiff's Exhibit 1 or 2, plaintiff
has failed to prove their case. There is no evidence that the defendant
obtained services, borrowed money or in any way incurred indebtedness
to the plaintiff. The plaintiff has the burden of proof of showing, first and
foremost, that there is some type of debt or obligation owed. At best, the
plaintiff has shown another entity identified only by documents as Union
Bank, had a summary of an account indicating the defendant owed
money, however, that in and of itself, is certainly not enough to obtain
judgment. In effect, the plaintiff has offered no more than an application
and summary. For the Court to grant judgment for plaintiff in this
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instance and on this evidence would make no more sense than the Court
granting judgment for a bank who produced into evidence an application
for a loan and a document stating money was owed the bank. As a
fundamental necessity to proving the bank's case up, the bank would
have to show that either money was deposited in the defendant's
account, a note was signed or some consideration. In the case at bar,
the plaintiff has shown a total lack of consideration. Thus, defendant on
the merits is entitled to a judgment.
WHEREFORE Defendant prays this Honorable Court enter
Judgment on behalf of the Defendant.
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Daniel T. Moore - 24949
MOORE, WALSH & ALBRIGHT, L.L.P.
Attorneys at Law
P.O. Box 610
Poplar Bluff, MO 63902-0610
573/785-6200
ATTORNEY FOR DEFENDANT
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