Product: Credit reporting or other personal consumer reports

Argument : XXXX XXXX XXXX XXXX and XXXX XXXX XXXX Documents Violate the Hearsay Rule and Do Not Qualify for the Business Records Exception Under Rule 803 ( 6 ) I. Introduction Defendant objects to the admissibility of documents submitted by XXXX XXXX XXXX XXXX and XXXX XXXX XXXX on the grounds that they constitute inadmissible hearsay under Texas Rule of Evidence 802. Furthermore, these documents do not qualify for the business records exception under Texas Rule of Evidence 803 ( 6 ) because they fail to meet the foundational requirements set forth by Texas courts.

II. The Documents Constitute Hearsay Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted. See Tex. R. Evid. 801 ( d ). The documents submitted by XXXX XXXX XXXX XXXX and XXXX XXXX XXXX contain records that purport to establish the existence of an alleged debt and its assignment. These records are out-of-court statements introduced to prove the truth of their contents, making them classic hearsay.

Since hearsay evidence is inadmissible unless it falls within a recognized exception, the burden is on the plaintiff to establish that these records qualify under an exception. See Castillo v. State, 517 S.W.3d 363, 382 ( Tex. App.Eastland 2017, pet. refd ).

III. The Business Records Exception ( Rule 803 ( 6 ) ) Does Not Apply Under Texas Rule of Evidence 803 ( 6 ), business records are admissible only if : 1. The record was made at or near the time of the event byor from information transmitted bysomeone with knowledge ; 2. The record was kept in the course of a regularly conducted business activity ; 3. Making the record was a regular practice of that activity ; 4. The conditions are shown by a qualified witness or by certification that complies with Rule 902 ( 10 ) ; and 5. The opponent does not show that the source of the information or method of preparation indicates a lack of trustworthiness.

For the following reasons, the documents submitted fail to meet these requirements.

A. The Records Are Not Created by the Party Offering Them XXXX XXXX XXXX is a third-party debt buyer and not the original creditor. Texas courts have held that a debt buyer can not simply rely on the original creditors records under Rule 803 ( 6 ) unless it independently verifies the accuracy of the records. See *XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX ( XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX  ) ( XXXX XXXX ) ( holding that a third party must show it has independently verified the reliability of the records to qualify under the business records exception ). 

XXXX XXXX XXXX has not established that it has independently verified the accuracy of the documents received from the original creditor or XXXX XXXX XXXX XXXX. Instead, it merely seeks to introduce them as received, which is insufficient under Texas law.

B. The Witness Is Not Qualified to Lay the Foundation for the Business Records Exception A witness must be familiar with the record-keeping practices of the business that created the documents. See XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX ( XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX  ). In cases where a third party attempts to introduce records from another entity, the testifying witness must have personal knowledge of how the original creditor created and maintained those records.

Here, XXXX XXXX XXXX and XXXX XXXXXXXX XXXX XXXX typically rely on an affidavit from an employee who has no firsthand knowledge of how the original creditor kept records. Texas courts have rejected such testimony as insufficient : In XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX ( XXXX. XXXX [ XXXX XXXX. ] XXXXXXXX XXXX XXXX ), the court held that testimony from a party that did not create the record but merely received it was insufficient to satisfy Rule 803 ( 6 ). 

In In re XXXX, XXXX XXXX XXXX, XXXX ( XXXX. XXXX XXXXXXXX XXXX XXXX  ), the court ruled that a business records affidavit from an entity that did not create the records can not establish their trustworthiness.

Because the witness from XXXX XXXX XXXX can not attest to the original creditors record-keeping practices, the documents must be excluded.

C. The Documents Lack Trustworthiness Even if the business records exception applied, the documents still must be excluded if they indicate a lack of trustworthiness. See Tex. R. Evid. 803 ( 6 ) ( E ). Debt buyers like XXXX XXXX XXXX frequently receive incomplete, inaccurate, or unreliable records from creditors. Courts have recognized that records used in litigation by debt buyers often fail reliability tests. See XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX ( Tex. App.El Paso 2008, no pet. ) ( excluding records where there was no evidence that the business had policies ensuring their accuracy ).

Here, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX have not demonstrated that their records are accurate or reliable. The potential for error, coupled with the lack of firsthand knowledge by the witness, renders the records untrustworthy and inadmissible. 

IV. Conclusion Because the documents offered by XXXX XXXX XXXX XXXX and XXXX XXXX XXXX are hearsay and do not qualify for the business records exception under Rule 803 ( 6 ), they must be excluded from evidence. The plaintiff has failed to : 1. Show that the records were created by XXXX XXXX XXXX or XXXX XXXXXXXX XXXX XXXX in the regular course of their own business ; 2. Present a qualified witness with personal knowledge of the original creditors record-keeping practices ; and 3. Establish the trustworthiness of the records.

Accordingly, Defendant respectfully requests that this Court sustain the hearsay objection and exclude the documents from evidence.

Respectfully submitted, [ XXXX XXXX ] [ ( XXXX ) XXXX ]