Arch Bay Holdings, LLC-Series 2010A v David L. Gartland (WI)

Summary: Affidavits must qualify records custodians as having personal knowledge of the authenticity of records and the manner in which they were created.  

Arch Bay Holdings, LLC-Series 2010A v David L. Gartland, et. al., 2012 AP 756-FT ( Wis. Ct. App., 2012).

Facts: David Gartland defaulted on a promissory note held by GMAC and secured by a mortgage on his residential real estate. GMAC assigned its interest in the mortgage to Arch Bay Holdings (“Arch Bay”). Arch Bay filed a motion for summary judgment, which Gartland opposed. In support of its motion, Arch Bay submitted an affidavit of one of its attorneys and an employee, “Susan Ceduc,” of Marix Servicing, LLC (“Marix”). Attached to the Ceduc affidavit were copies of the following: an assignment of the mortgage from GMAC, or another entity, to Arch Bay, an unsigned letter addressed to Gartland representing that his mortgage was “in default” and claiming the “amount due and owing” was $3,233.75, and a five-page document purporting to be a history of his account with GMAC, reflecting payments made or not made on the loan. The circuit court granted summary judgment in favor of Arch Bay and found that Gartland owed a total of $161,695.89.

Gartland appealed arguing that the Ceduc affidavit did not establish a prima facie case for Arch Bay because it was insufficient in the following respects: it did not demonstrate that Ceduc had personal knowledge of the information contained in the attached records, it did not establish a foundation as to how the records were created, and it provided no foundation for the capacity of Ceduc to authenticate the attached documents because Ceduc is neither an employee of GMAC nor of Arch Bay. Due to these insufficiencies, Gartland argued that Arch Bay could not establish the default of the note or the amount owed.

Holding: Reversed and cause remanded for further proceedings. The court determined that though the affidavit stated Ceduc was the “custodian of the business records” and that she had “possession, control, and responsibility for the accounting and other mortgage loan records relating to the defendants’ mortgage loan,” the affidavit did not state facts showing that she had personal knowledge of how the attached records were prepared and whether they were prepared in the ordinary course of GMAC’s business. Therefore, the affidavit was insufficient. Because the Ceduc affidavit did not speak to her personal knowledge of the preparation of the records she was not qualified to testify to their authenticity. Therefore, the case was remanded for further proceedings.

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By: ATG Underwriting Department | Posted on: Thu, 10/11/2012 - 9:25am