for the admission of business simply put if company eight wires company b in the custodian of the records of company a establish a proper foundation for the records  company b without having any knowledge or familiar with the record keeping practices of company b prior to any acquisition i think we all would agree that the custodian of the records of company a was a stranger to the record keeping practices of company b would be incompetent to lay a foundation for the company records of a company b the  question then becomes if the next day the company a now acquires company b the supreme court rules to thirty six now somehow magically in stowing of company a to confidently late a foundation for the records of company b i say no i own it says yes in discussing this i think it's important that we've brought a distinction between individual records created by third parties that are part and parcel of the record keeping process of a company  a wholesale and massive acquisition of the records of one company to another the first instance is in the regular course of business as we normally understood in the business records are created by third parties all the time they're part and parcel of the record keeping process that company however the second is not a regular course of  extraordinary occurrence one which the record keeping systems are different there is no knowledge it is a different type of situation entirely and i think that distinction and is conditioned upon the statement is made in the regular course of business and it was the regular course of business to make such a memorandum or rightly so ensure third party or the record order was absolute or had knowledge of their system i don't think it's constricted to an employee but obviously someone who can satisfy the requirements of  transmitted by personal knowledge three was kept in the course of a regularly conducted business activity and for that it was the regular practice of the business activity to make such a document all shown by the testimony custodian or other qualified witness and as stated in the liner case a qualified witness is one who can explain the record keeping system of the organization and vo custodian of company x is incompetent to lay a proper foundation for the records of company b just by the mere fact of the acquisition how it would be hard pressed for perhaps but then you were at least given some direction instruction as to the methodology and you could just say the records are all here i mean if you do have to go into the methodology of keeping them the retention of them you have to have some testimony that indicates because don't forget we're going in the face of hearsay here we're allowing third party created darkness into evidence and in order to do that historically and under the rules we have to indicate have some kind of  of the reliability and trustworthiness and if the testimony can establish that then that's fine but it has to indicate you know that there is a practice that there is some reliability so the mean maybe not and you know based upon the the limited statements that you have because based upon that i don't know that there is any will liability or trustworthiness of the record because there would have to be these documents i don't know who the signature is but we got these because they are working to our own analysis and when we receive them out we placed on in this type computer it is given for this purpose and it's  know it's got to certain types once you do that then the fact that you don't know the signature doesn't really matter i mean it it may matter on the way to do that but not only misspell but that's a very well there are ways because number one when they do the acquisition it would seem to me that they would have somebody who would go in and become and again you know in the following in the briefs here they keep on trying to attribute my argument something that i never sat and that is we all know that individual records in groups of records in the third party created you don't it's always been my experience that when you file a motion to strike a pleading and if it's denying you're given the opportunity to respond in a factual way the pleadings in this case we had things just talking about and also a factual response by katherine younker an affidavit that indicated the amounts owed were incorrect because forgeries for a name that's a little bit more important here because this was natur traditional off first mortgage loans was a construction loan so there were numerous payouts over aunt period a kind of all of this occurre then i consideration of the counter affidavit of katherine younger based upon two things number one said it was an affirmative defense and that lead to this site ch in the number two that it time and with respect to the affirmative defense are the statute and always my understanding is been an affirmative defense basically had mi he's counter act they did it was an alternative response but it is a response nonetheless and in the overall scheme of things you know when we enter a motion for summary judgment i think is judges and lawyers we want t whether the trial court erred in determining that the banking records that first merit relied upon in the salmon's affidavit and in the his affidavit were actually first merits business records under supreme court rule two thirty that these defenses failed banking practices or forgery were waved and therefore were not going to be consider in determining whether there was a disputed question in deciding the motion for s she certainly had the opportunity shelled motion asking for leave we did write that issue but the court ultimately in its discretion determined that that answer that she asked would be filed and that answer did not raise any affirmative defenses it had in the denial section a suggestion that some of the disbursement were not based upon her signature is not actually pleaded and there is absolutely no statement of how th become that things record but in fact if you look at the affidavits that were submitted it mr hayes in particular at paragraph eight i am his affidavit to suggest that he reviewed all of those records that they were d i don't know how this was prepared i have no idea how that would be at the investigator of the building actually prepared these records i don't know what information was used but we as we incorporated that included it within our own records and we relied upon it it's going to come in but it's not going to have a lot of weight but that this or that determination it just because something it's a knitted as a business record doesn't give it any more weight than any other type of evidence the trial court that has to evaluate that  and to make a determination whether or not it is good evidence or bad it is this these are this documentation that was provided to first marriage thing and so that it could then proceed for closure and then on the c from the from george washington savings bank so i think there are plenty of cases where the business records of third parties are incorporated in relied upon by a business and they are  business records and there's no question as to that i don't think it makes a difference whether this is a large amount of records or a small amount of records but if it makes the difference if it's a large amount of records or a small amount of records i reach this court to consider some of the federal cases that were cited at some type of president and i can see here in the situation involving sax sachs international with the case from the second circuit not just  circuit there were looking at loading tally that were prepared by ed steve by a shipping company and they were relied upon by the people that purchased these nineteen thousand pounds of coffee  this is not one document or a few documents this is nineteen thousand pounds of coffee through loading tally still doesn't matter how many we're talking about is it one is it two let's talk about hundreds of stolen cases of scotch that were being used and that was offered as evidence so it's just one thing or you know two things that we're talking about we're talking up lots of record and so i don't think that the number is the critical fact what's important and what's critical here is whether those documents were incorporated into the records of the business of offering them and whether they were alive time and does that person offering that have the foundational elements does that work that and what we have here is mr hayes in the salmon's both say this is where we do this information we regarded it as trustworthy and reliable it was contained within these computerized records because it was part of our ordinary practice and it was admissible and let's be mindful here that it's the trial court that makes that decision it's abusive suppression he's the and so when the court is considering this you have to wonder whether records and you don't have to create this all in new although there is no decision here in the third district there is no decision here is particularly on this point in the third district but there are plenty evaluate that in determining whether or not this judge trial court abused its discretion in determining an appropriate foundation has been established for these banking records which it regarded as its own upon the purchase is that what we know about your daughter who have they didn't want to they know about george washington's record what did on old colony know about his inspectors manner preparing its records or how those records were maintain what's important is how old colony maintained those records within its organization what's important here is for this court to understand how first marriage maintaining and used the records that it obtained from a third party testimony being offered there as to what the banking practices were of those two prior predecessor banks what was important was how did this afternoon how did this witness how did this happen and find this information how is it maintain within the organization that is being that is offering that evidence that only goes to the liability of your bank yes and go to anything reliability of george washington that's certainly the case it doesn't go to once records from you know the coffee service and those are maintained within the seller is record keeping the buyer now owns this company happier and finds out that there's a defect and they then proceed to file  claim against the manufacturer because of the defect let's assume it really did something bad you know it actually injured someone and there's going to be a claim made about about this copier in the defect that was within it the manufacturer is going to defend it and say well you didn't properly maintain battier of that copier is going to be utilizing the records from the feller those records to show that proper maintenance has been kept and maintain and no one's going to challenge  so in my view it was the courts because there was the just the trial court's discretion to determine whether or not he felt that there was sufficient foundation laid for these records and he could decide whether or not there was going to be sufficient weight for them obviously you don't have way that you're reading it the rule the way that you're reading it so is one thing the way that she is reading it so as a mother why is our review of that question that he's raising  statutory is for instruction of person would be to know and i think that there's absolutely no no way i could ever dispute that if you are looking at statutory construction that would be to know about did the court interpret the statute improperly i get that could be to know about but the fact is that there's plenty of precedent to support this interpretation and i and this is not a novel and i would just leave it  was raised in the amended answer in terms of how doing next right after we got the documents that were necessary to review because apart from the legal issues in this case he others suddenly nine a t with regard to getting back to the other issues here the council talks about follow that somehow the number of records controls of a determination of whether or not something maybe in the business record and i would submit that's not the criteria the criteria is whether or not those records be a one or via the fifty thousand it's something that