Assignee Of Loan Can Introduce Assignor’s Business Records Concerning The Loan Under The Business Records Exception

In FirstMerit Bank v. Balin, (No. 11 CV 8809, ND IL, Sept. 11, 2012), the assignee bank purchased defendants’ loan from the FDIC which was acting as the receiver of the bank which originated the loan. After the assignment, the loan was declared in default and the assignee sued to recover under the note and guarantees. The assignee moved for summary judgment and attached an affidavit of its employee which was supported by loan records that it had obtained from the assignor when the loan was assigned. The defendants objected to the admissibility of the business records claiming that they were not the business records of the assignee but the business records of the assignor and thus could not be properly authenticated by the assignee. The court granted summary judgment for the assignee holding that the records were properly authenticated under Federal Rule of Evidence 803(6) since, upon the assignment, the loan records became the records of the assignee as a successor to the assignor. The court observed that the focus of Rule 806(3) is the reliability or trustworthiness of the records sought to be introduced and that that determination is within the discretion of the court. The court found that there was sufficient evidence to show that the business records were trustworthy and reliable documents and observed that the defendants failed to present any evidence to call into doubt the accuracy or trustworthiness of the business records. The court noted the standard of authentication advocated by defendants would have made it extremely difficult for the FDIC in its receivership to dispose of the failed bank’s assets. Accordingly, the court admitted the business records of the assignor.

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