Beal Bank, SSB v. Eurich

831 N.E.2d 909, 444 Mass. 813, 2005 Mass. LEXIS 429
CourtMassachusetts Supreme Judicial Court
DecidedAugust 3, 2005
StatusPublished
Cited by39 cases

This text of 831 N.E.2d 909 (Beal Bank, SSB v. Eurich) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beal Bank, SSB v. Eurich, 831 N.E.2d 909, 444 Mass. 813, 2005 Mass. LEXIS 429 (Mass. 2005).

Opinion

Ireland, J.

Beal Bank, SSB (bank), brought an action against Richard R. Eurich (defendant) to recover a deficiency on a mortgage note after a foreclosure sale. After a jury-waived trial, the trial judge entered judgment for the bank and ordered the defendant to pay the deficiency and attorney’s fees. The defendant appealed from the judge’s decision, and in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed the judgment, holding it was error to allow in evidence two computer printouts showing the amount owed on the debt. Beal Bank, SSB v. Eurich, 62 Mass. App. Ct. 1101 (2004). We granted the bank’s application for further appellate review to consider only whether computer printouts [814]*814generated by a company that services loans for the bank were properly admitted as the bank’s records under the business records exception to the hearsay rule. Because we conclude that the computer printouts were properly admitted as the bank’s business records, we affirm the judgment of the Superior Court.

Facts. We recite the relevant facts as found by the judge, supplementing them as necessary, and reserving certain details for our discussion.

On July 29, 1987, the defendant executed and delivered a five-year promissory note in the amount of $151,000 to Home Owners Federal Savings and Loan Association (Home Owners). The note was secured by a first mortgage on four condominium units located in Springfield. On June 1, 1992, the Resolution Trust Corporation (RTC), receiver of Home Owners, assigned the note and mortgage to Bankers Trust Company of California, N.A. (Bankers Trust), as trustee under a “Pooling and Servicing Agreement Dated as of June 1, 1992, for RTC Home Equity Loan Mortgage Pass-Through Certificates Series 1992-HEL 1.” On September 18, 1996, Bankers assigned the note to the bank. At the time of the assignment to the bank, the full principal of the note remained outstanding, and no interest payments had been made after August, 1992.

The bank employed Electronic Payment Systems (EPS), a company that services approximately 4,000 loans for the bank, to service the defendant’s loan. In November, 1996, while the bank held the loan, EPS recorded that the defendant made one interest payment in the amount of $733.63. No further payments were made.

On June 23, 1997, the bank sent the defendant a notice of intent to fqreclose and notice of acceleration of the note. The bank was the only bidder at the foreclosure sale on September 26, 1997, and paid $18,000 for the four condominium units. The bank then brought this action to recover the deficiency.

At the jury-waived trial, the bank introduced two computer printouts (captioned “Master Query Screen” and “Loan Payoff Calculation”) created by EPS to prove the amount of the deficiency. Both printouts were dated September 12, 1997. Over the defendant’s objection, the judge admitted both documents as business records of the bank, finding that as the bank’s servic[815]*815ing agent, EPS had an obligation to report accurately and therefore it was fair to consider the printouts as the bank’s business records.

Discussion. The defendant argues that the judge erred in allowing the computer printouts in evidence under the business records exception to the hearsay rule.1 G. L. c. 233, § 78. We conclude the judge did not abuse her discretion in admitting this evidence. See Poirier v. Plymouth, 374 Mass. 206, 210 (1978).

Under the business records exception to the hearsay rule, a document is admissible as a business record if the judge finds that it was (1) made in good faith; (2) made in the regular course of business; (3) made before the action began; and (4) the regular course of business to make the record at or about the time of the transaction or occurrences recorded. DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 105 (1983). A judge’s decision to admit the records implies these requisite findings under G. L. c. 233, § 78. Commonwealth v. Baker, 368 Mass. 58, 84 (1975).

The statute states that a record made in the regular course of business “shall not be inadmissible . . . because it is hearsay.” G. L. c. 233, § 78. Rather, “[sjuch a record is presumed to be reliable and therefore admissible because entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of doing business” (citations omitted). Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982). Furthermore, the “statute [816]*816makes clear that the record is admissible even when the preparer has relied on the statement of others, by providing that ‘personal knowledge by the entrant or maker’ is a matter affecting the weight (rather than the admissibility) of the record.” Id., and cases cited. Although the preparer’s hearsay sources must carry the same indicia of reliability and be shown to have been reported as a matter of business duty or business routine, this can be accomplished by presenting evidence of normal business practice, rather than by producing each speaker. Id.

The two computer printouts at issue contained the defendant’s November, 1996, payment and his balance information that EPS maintained on a computer system to which the bank had access at all times through their own computers. Although there is no question that the printouts were created before this action began — they were both dated September 12, 1997, and this action began on February 20, 1998 — the defendant argues that the requirements concerning whether the records were made in the regular course of business were not met.

The defendant first argues that the judge improperly admitted the computer printouts because they were the records of EPS and the bank failed to present testimony concerning the business practices of EPS in maintaining such records. Although the bank’s loan default manager (manager) testified that EPS serviced the defendant’s note on the bank’s behalf pursuant to a contract, the defendant argues that this was insufficient to provide the necessary foundation. Specifically, the defendant points out that the manager was not the preparer of the documents, and did not testify about how the records were maintained or generated. Additionally, relying on NationsBanc Mtge. Corp. v. Eisenhauer, 49 Mass. App. Ct. 727, 734 (2000), the defendant argues that because the printouts were created by EPS and merely received by the bank, they lack the indicia of reliability and are inadmissible as business records of the bank.

In NationsBanc Mtge. Corp. v. Eisenhauer, supra, the as-signee of a mortgage sought to establish that the mortgage had been discharged in error. At trial, the assignee attempted to introduce two types of documents — those that were received from its predecessor, and those that it prepared based on documents from its predecessor. The Appeals Court held that docu[817]*817ments received from another business lacked the indicia of reliability and were properly excluded. It further held that documents based on information provided by another business were properly excluded where the assignee failed to offer any evidence that the person initially reporting the information had personal knowledge or a business duty to report the information accurately.

However, it is well established that G. L. c.

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Bluebook (online)
831 N.E.2d 909, 444 Mass. 813, 2005 Mass. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beal-bank-ssb-v-eurich-mass-2005.