Case info: Baez v Nat’l Collegiate Trust, 2017 WL 6568756 (Bankr. S.D.N.Y. Dec. 22, 2017)
Case opinion: Download
TL;DR: Sure, the pages are misnumbered.1 And yes, the loan documents were made by Bank of America. So what? By themselves, those two things don’t raise a genuine issue as to the admissibility of the loan documents. Try again at trial.
Debtor’s motion in limine2: denied.
- ICYMI: Student loans in bankruptcy December 2017 [Pratola]
- ICYMI: Student loans in bankruptcy December 2017 [Wiley]
- Everything you need to know about student loans in bankruptcy November 2017
Attacking the loan documents National Collegiate Student Loan Trust produces
Because this is an adversary involving National Collegiate Student Loan Trust, you already know the facts:
- Lauren, while she was a student, borrowed a loan from a private lender (Bank of America here)
- The loan was eventually sold to National Collegiate and placed in one of its trusts
- Now, the trust says Lauren owes it and
National Collegiate included in its trial exhibits the loan documents between Lauren and Bank of America. The first 2 pages were numbered “1 of 2” and “2 of 2”. The other 4 were labeled “3 of 6”, “4 of 6”, etc..
Lauren moved to limit the entry of the documents because she believed the misnumbering raised a genuine issue as to the document’s authenticity.
National Collegiate looked at her motion and was like:
What the court said
Lauren, you lose. Here’s why.
In looking at the loan documents, the court noted that, yes, the page numbers were off. But there was other evidence that added to the genuineness of the documents. For instance:
- Laura listed National Collegiate as an unsecured creditor on schedule E/F;
- Laura admitted she and her cosigner signed page 2 of 2;
- There’s language on page 2 of 2 that says she read, understood, and agreed to the terms on all 6 pages; and
- All 6 pages have the same marking in the left corner.
Plus, National Collegiate told the court that if a trial were held, it would produce a witness who would testify that the loan documents were a copy of the complete agreement between Lauren and Bank of America.
Those facts convince the court that the documents were genuine. So it denied Lauren’s motion in limine. The court did leave open the door for her to object to the loan documents at trial.
What’s the impact
What this case does is highlight the difficulties in trying to get evidence kicked out because of its genuineness. Courts like copies. Lenders like copies. It makes the process of litigation easier. If you’re going to make things more difficult, then you should have a compelling reason to do so because courts consistently reject questions of genuineness.
IMO, the better strategy is to attack the witness National Collegiate offers to testify about the loan documents. That person has to have personal knowledge of the contents of the loan documents. That person needs to know how the documents were created, when they were created, and how they were maintained.
If this lawsuit between National Collegiate and the Consumer Financial Protection Bureau is any indication, it’s likely that National Collegiate will have a hard time producing such a witness.