Affidavit Filed By Current Servicer Relying In Part On Prior Servicer’s Records Admissible Under Illinois’s Business Record Exception

In Bank of America, N.A. v. Land, 2013 IL App (5th) 120283 (July 31, 2013), the Illinois appellate court affirmed an order of summary judgment for a bank in a mortgage foreclosure action. At issue in that case was the admissibility of the affidavit of the bank’s assistant vice president. The mortgagor’s maintained that the affidavit was insufficient to support a motion for summary judgment because it relied on records maintained by a prior servicer. Thus, the affiant lacked foundation and the affidavit did not sufficiently demonstrate that the bank was entitled to judgment. The court affirmed. It found that the affidavit complied with Illinois’s business records exception. The rule expressly provides that lack of personal knowledge by the maker may affect the weight of the evidence, but not its admissibility. The theory upon which entries made in the regular course of business are admissible as an exception to the hearsay rule is that ‘since their purpose is to aid in the proper transaction of the business and they are useless for that purpose unless accurate, the motive for following a routine of accuracy is great and the motive to falsify nonexistent.’ The court held that it made no difference whether the records are those of a party or of a third person authorized by the business to generate the record on the business’s behalf. A party can establish a foundation for admitting business records through the testimony of a records custodian or another person familiar with the business and its mode of operation. Thus, because the affiant attested that she was personally familiar with bank’s procedures for creating and maintaining its business records and that its records pertaining to mortgagors’ mortgage records were made at or near the time of the occurrence of the matters set forth therein by persons with personal knowledge of the information in the business record, and further that the records were kept in the course of bank’s regularly conducted business activities, the affidavit was admissible.

Download Related Document