Dianne C. Matthews A/K/A Dianne C. Koulouvaris v. Wells Fargo Bank, National Association

• Court: Court of Appeals of Georgia
• Decided: January 26, 2016
• Docket: A15A1823
• Status: Published

Opinion

THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

January 26, 2016

In the Court of Appeals of Georgia A15A1823. MATTHEWS v. WELLS FARGO BANK, NATIONAL ASSOCIATION.

MCFADDEN, Judge.

This appeal challenges the trial court’s admission of business records at a

bench trial. Because the trial court did not abuse his discretion in admitting the

records, we affirm.

Wells Fargo Bank, National Association filed suit for breach of a promissory

note against Dianne C. Matthews a/k/a Dianne Koulouvaris. Matthews originally

executed the note in favor of Wachovia Bank, which later merged with Wells Fargo.

Matthews failed to timely answer the complaint. The trial court entered default on the

issue of Matthews’s liability and held a non-jury trial solely on the issue of damages. Matthews had borrowed from Wachovia and made all of her payments to

Wachovia, and at trial, Wells Fargo sought to prove damages by calling as a witness

Jill Freel to authenticate the Wachovia records for Matthews’s loan. Freel testified

that she is an operation analyst for Wells Fargo; that in performing her duties she is

familiar with Wells Fargo’s record-keeping practices; that she is familiar with the

2010 merger of Wells Fargo and Wachovia; that a transaction statement from

Matthews’s account was prepared in the regular course of business and reflected all

the payments she had made; and that Wells Fargo had the records underlying the

transaction statement.

Matthews objected to the admission of the transaction statement on the ground

that Freel, an employee of Wells Fargo, did not have personal knowledge of the

record-keeping practices of Wachovia. The court denied the objection, admitted the

document, and entered judgment in favor of Wells Fargo for $261,475.21. Matthews

appeals from the final judgment, arguing that the trial court erred in admitting the

transaction statement because Freel’s testimony was insufficient to establish a

foundation for its admission.

Under OCGA § 24-8-803 (6) of Georgia’s Evidence Code,

2 a business record is admissible as an exception to the hearsay rule if: the record was made at or near the time of the described act; the record was made by a person with personal knowledge and a business duty to report; the record is admitted through the testimony of a qualified witness; the record was kept in the course of a regularly conducted business activity; the record was made as part of the [business’s] regular business activity; and the source of information or the method or circumstances of preparation do not indicate a lack of trustworthiness.

Wallace v. State, __ Ga. App. __, __ (3) (__ SE2d __) (2015) (Case No. A15A0789,

decided Nov. 16, 2015) (citation omitted). We review the trial court’s admission of

evidence under this rule for an abuse of discretion. Id.

Matthews argues that Freel’s testimony was insufficient to admit the

transaction statement because she testified that she had no knowledge about how

Wachovia kept its loan history, payment records, or the records set forth in the

transaction statement. “We have consistently rejected similar arguments in the past.”

Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 248 (2) (758 SE2d

145) (2014) (citations omitted). Instead, in construing OCGA § 24-8-803 (6), we have

followed the rule that employees of successor entities can authenticate business

records of their predecessor entities that pass to them by virtue of merger. See id. at

249 (2) (citing Fed. Deposit Ins. Corp. v. Sri Chakra Group LLC, No. 5:13-CV-268-

3 MTT, 2014 U. S. Dist. LEXIS 12701, at *11 (M. D. Ga. Feb. 3, 2014). This is

particularly true with bank records, “in light of the fastidious nature of record keeping

in financial institutions, which is often required by governmental regulations.” Ware

at 249 (2) (citations omitted).

Matthews attempts to distinguish this case from similar cases on the ground

that Freel affirmatively testified that she had no understanding of how Wachovia kept

its loan transaction records or how those records were integrated into the Wells Fargo

system. But “[t]he testifying witness does not need firsthand knowledge of the

contents of the records, of their authors, or even of their preparation.” Curtis v.

Perkins, 781 F3d 1262, 1268 (II) (B) (11th Cir. 2015) (citations omitted). Thus the

fact that Freel never worked at Wachovia and did not have firsthand knowledge of its

record-keeping practices does not mean that she could not authenticate Wachovia’s

business records. Freel testified that she knew how the transaction statement was

prepared, that it was made and kept in the regular course of the bank’s business

activity, and that it was the bank’s regular business practice to make and keep such

records. Freel testified that she had no reason to believe that Wachovia’s records were

inaccurate, based on her experience working with the transfer of files from Wachovia

to Wells Fargo. She further testified that while she was not familiar with the physical

4 transfer of Wachovia’s files to Wells Fargo, she was familiar with the transfer of

transaction histories. Given this testimony, the trial court did not abuse his discretion

in determining that Wells Fargo established a sufficient foundation for the admission

of the transaction statement. Triple T-Bar, LLC v. DDR Southeast Springfield, LLC,

330 Ga. App. 847, 848-849 (1) (769 SE2d 586) (2015).

Matthews argues that because the trial court should not have admitted the

transaction statement, which was Wells Fargo’s only evidence of damages, she was

entitled to a direct verdict. We reject this argument in light of our conclusion that the

trial court properly admitted the transaction statement.

Judgment affirmed. Ellington, P. J., and Dillard, J., concur.