A recent Second Appellate District decision highlights the importance of properly supported documentation in support of one’s claim. The case, SFJV 2005, LLC v. Ream, 187 Ohio App. 3d 715, involved the admissibility of certain documents in support of the foreclosure of the defendant’s property.
As is usual in today’s home financing world, the loan originally signed by the defendants transferred hands from the original financing institutions to other financing companies and administrators resulting in a myriad of assignments and other documents requiring the introduction of evidence showing the proper and legal transfer of interest between the entities. Of course, the person testifying at the trial did not have first hand knowledge of all the transfers but merely testified and presented documents that were either notarized or recorded. The defendant objected to the admissibility of these documents claiming they were “hearsay” and, therefore, inadmissible.
The Ohio Rules of Evidence define hearsay and, in the interest of the speedy adjudication, outline certain exceptions to the hearsay rule. As stated by the court, "Proving the contents of a writing presents problems with hearsay, authentication, and the best evidence rule," the three issues confronting the admissibility of any document. The court’s analysis was as follows:
Evid.R. 801(C) defines hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement," as included in the definition of hearsay, is an oral or written assertion or nonverbal conduct of a person if that conduct is intended by him as an assertion. Evid.R. 801(A). "Evid.R. 802 mandates the exclusion of hearsay unless any exceptions apply. The relevant exceptions to the hearsay rule include business records, public records, and records of documents affecting an interest in property. Evid.R. 803(6), (8), (14).
Documents must be authenticated or identified prior to their admission into evidence. Evid.R. 901. This requirement is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Extrinsic evidence of authenticity is not required for certain documents to be admitted. Evid.R. 902. For example, certified copies of public records, commercial paper, and acknowledged documents are self-authenticating. Evid.R. 902(4), (8), and (9).
Although the defendants claimed that the documents being admitted were merely duplicates, the court stated, "Duplicates" are admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances, it would be unfair to admit the duplicate in lieu of the original. Evid.R. 1003.”
The defendant further asserted that the documents were inadmissible as their authenticity had not be certified. The court countered this argument by saying “[Each document bore] a notation of the book and page in which the document was recorded. Moreover, each of the exhibits has a page consisting of an acknowledgment by a notary. Documents acknowledged by [a notary] are self-authenticating, Lorain Cty. Bar Assn. v. Kennedy, 95 Ohio St.3d 116, 2002 Ohio 1943, 766 N.E.2d 151; Evid. R. 902(8).
The defendants then argued that certain documents recorded with the Secretary of State were inadmissible as there was no testimony from the Secretary of State regarding their authenticity. Responding to that argument the court again referred to the Ohio Rules of Evidence, “[The documents] are public records and, thus, admissible under an exception to the hearsay rule. Evid.R. 803(8). Furthermore, the documents include a certificate by the Ohio Secretary of State that it has custody of these specific business records and that the business records show the recording and filing of these documents; the certification is signed by the Ohio Secretary of State and includes the seal of the Office of the Secretary of State. This certification is sufficient to meet the self-authentication requirements of Evid.R. 902.”
What can be drawn from this analysis?
1. As long as a document can be authenticated, it will be admitted as long as it meets one of the criteria for inclusion under the Ohio Rules of Evidence.
2. The direct testimony of a witness to the signing, recording or certification of a document is not required as long as the admission of the document does not violate a hearsay exception outlined in the Ohio Rules of Evidence.
3. Although documents may be admissible someone must testify as the method in which the documents are authenticated.
Posts
