I see a lot of attorneys that routinely file motions to value and determine the secured status of liens (a.k.a. “lien strip motions”) or motions for relief from the automatic stay that are based on declaration testimony and documentary evidence which is clearly inadmissible under the Federal Rules of Evidence. Fortunately for them, opposing counsel routinely does not object to the admission of this evidence — probably because they don’t know any better themselves.
For example, I see a lot of motions that have an appraisal report attached, but there is no declaration from the appraiser to authenticate the report. In an actual trial, attorneys cannot just submit an appraisal report into evidence. The report first has to be properly authenticated by the testimony of the appraiser who prepared the report, or at least by a “custodian of records” or other “qualified witness” under Rule 803(6)(D) of the Federal Rules of Evidence.
Even if the report contains a certification from the appraiser under penalty of perjury that it is a true and correct copy of an appraisal report that he or she prepared, a “certification” from an appraiser does not satisfy the specific legal requirements for declaration or affidavit testimony. Without a proper declaration, the report cannot be authenticated as required by Rule 901 of the Federal Rules of Evidence. Without authentication, the report is inadmissible as a matter of law. Moreover, without a declaration from the appraiser, there is no evidence that he or she is qualified to testify as an expert witness as to the opinions of value stated in the report.
I also see a lot of declarations by employees of institutional lenders that simply state that “I am a Vice-President of XXX Bank and make this declaration in that capacity.” However, the declarations typically fail to state any facts to sustain a finding that any of the pertinent factual matters set forth in them are based on the declarant’s personal knowledge. Just because the declarant is a Vice-President of the lender (perhaps one of many) does not mean that he or she has personal knowledge of the factual matters set forth in the declaration.
Absent an exception to the hearsay rule, all matters set forth in declarations must be based on personal knowledge, and statements in a declaration are inadmissible unless the declaration itself affirmatively demonstrates that the declarant has personal knowledge of those facts. Love v. Commerce Bank of St. Louis, N.A., 37 F.3d 1295, 1296 (8th Cir. 1994); Gagne v. Northwestern Nat’l Ins. Co., 881 F.2d 309, 315-16 (6th Cir. 1989).
The declarations and affidavits of many officers and employees attempt to throw in the basic required statements to support an “alternative” finding that they are a “custodian of records” or other “qualified witness” under Rule 803(6)(D), so as to make their testimony admissible under the “business records” exception to the hearsay rule. Rule 803(6)(D) generally requires a declaration or affidavit to contain very specific statements before documentary evidence can be admissible as an exception to the hearsay rule. Many declarations are missing one or more of the required statements, which makes the proffered hearsay evidence inadmissible as a “business record”.
Rule 1002 of the Federal Rules of Evidence (sometimes referred to as the “Best Evidence Rule”) generally requires the original of a document to prove its contents. Therefore, testimony to prove the contents of a document is generally not admissible. Copies of the original, and testimony as to the contents of a document, are admissible under certain situations as specified in Rules 1003 through 1007.
Motions are no different than a trial — they require admissible evidence to support the factual matters upon which they are based. Knowing the applicable state and federal rules of evidence will make you a much better lawyer and serve you well throughout your legal career.
Many years ago, I was sued by the seller of a home I had purchased there. I represented myself pro se. When we appeared for trial, each time the plaintiff’s attorney attempted to introduce documentary evidence, such as an appraisal report, etc., I successfully objected based on grounds of lack of authentication, hearsay rule, and best evidence rule. After representing myself in a 2-day trial against an experienced civil attorney and winning a judgment of nonsuit, the presiding judge told me that I was the smartest person that has ever appeared in his courtroom. Knowing the rules of evidence can make you look smart — even if you’re not.