I’ve learned from painful experience to always have evidentiary foundation and authenticity considerations at the forefront of my trial preparation plan.
I’ve also found that having a working knowledge of Illinois Supreme Court Rule 236 (SCR 236), as well as Federal and Illinois Evidence Rules 803(6) and 902(11) (hearsay exception and self-authentication rules for business records, respectively) is essential to preparing for and proving my client’s breach of contract case at trial.
Bank of America v. Land, 2013 IL App (5th) 120283 serves as a good case law illustration of the business records rule.
The plaintiff bank sued to foreclose a mortgage and later moved for summary judgment. The bank supported its summary judgment motion with a bank officer’s affidavit who testified that she reviewed the bank’s books and records of the mortgage holders, reviewed the borrowers’ payment history and certified a payment history attached to the affidavit. Land, ¶ 5.
The trial court granted the bank’s motion awarding it money damages of over $100,000 and a judgment of foreclosure. Land, ¶ 6. Defendant appealed.
Result: Trial Court affirmed. The bank’s supporting affidavit meets the requirements of SCR 236.
Reasoning: The defendant’s chief argument on appeal was that the bank officer’s supporting affidavit was inadmissible hearsay since the underlying mortgage didn’t originate with the plaintiff and because the affidavit relied on a third party’s (another mortgage company) loan records.
The Court rejected the argument and held that the affidavit met the requirements of SCR 236, which codifies the hearsay exception for business records (a link to the Rule’s text follows this post).
– SCR 236 provides that any record of a monetary transaction is admissible as evidence of that transaction if the record is made in the regular course of business and the business’s regular practice was to make a record of a transaction at or near the time of the transaction;
– The rationale for the rule is that business records exist to aid in the proper transaction of business and so records are “useless for that purpose unless accurate.”
– Lack of personal knowledge by the maker may affect the evidence’s weight, but not its admissibility;
A third party’s records can also be admitted where that third party is authorized to generate the record on behalf of the offering party.
¶ 13.
Applying these rules, the Court found that plaintiff satisfied SCR 236 requirements where the affiant/bank officer testified
(i) that she was familiar with the bank’s business records creation and maintenance practices,
(ii) that the records pertaining to the defendants were made at or near the time of the occurrences giving rise to the records,
(iii) were made by individuals with personal knowledge of the information contained in the business record, and
(iv) the records were kept in the regular course of the bank’s business. ¶ 13.
Take-aways: Illinois litigants now have a slew of evidence rules – SCR 236, IRE 803(6), IRE 902(11) – at their disposal that streamline the process of getting business records into evidence at trial and eliminate many of the logistical and hearsay headaches that trial practice formerly entailed.
The case underscores the importance of knowing the rules for business record admissions at trial and on summary judgment. A key holding of Land is that the business records relied on can be those of a third party; as long as the witness can testify to her familiarity with the records and can establish that the third party records were integral to the witness’s business. This obviously obviates the need to subpoena a third party to testify concerning the third-party records.