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Deutsche Bank National Trust Company v. Wilson

A-1384-09T1 (N.J. Super. App. Div. 2011) (Unpublished)

FORECLOSURE —Under the New Jersey Rules of Evidence, an affidavit in a foreclosure action referencing computerized records must provide authentic copies of those computerized records.

A bank foreclosed on homeowners. The homeowners filed a response, which was accepted by the lower court as an answer. The answer challenged, among other things, the bona fides of a later assignment of the mortgage. In response, the bank filed a motion for summary judgment, but the lower court denied relief pending further information regarding the assignment. Then, the bank filed a supplemental affidavit executed by a manager. In it, he attested to the accuracy of facts. After receiving the supplemental affidavit, the lower court struck the homeowners’ answer and permitted the foreclosure matter to proceed by default. A judgment was entered in favor of the bank.

The homeowners appealed, and in their appeal, the homeowners asserted that the bank’s affidavit regarding the assignment was hearsay and violated New Jersey’s Best Evidence Rule. The Appellate Division recounted the Supreme Court’s iteration of the relevant factors that must be established by a proponent of documents pursuant to Rule 803(c)(6): the writing was made in the regular course of business; was prepared within a short time of the act, condition or event being described; and the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence. Nothing in the submitted affidavit satisfied any of the above elements.

The Court was also concerned with this document under Rule 1002 which requires an original when using a document to prove the content of a writing or photograph. In this particular affidavit, reference was made to computerized records, yet no such records were used to support the attestations. The Court concluded that the bank failed to meet its burden to establish the bona fides of the alleged assignment and reversed and remanded the matter for further proceedings.

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