In a unanimous decision of the Alabama Court of Civil Appeals handed down on Thursday, December 30, 2011, the Court expressly embraced the reasoning so thoughtfully set forth by Mr. Roper in his post:
Personal Knowledge, Hearsay, Conclusory Averments and the Best Evidence Rule
The decision written by Judge Pittman for the five judge panel is:
James M. Perry v. Federal National Mortgage Association, No. 2100235, 2011 Ala. Civ. App. LEXIS 363 (AL App. 2011)
From the decision:
Perry argues that Fox's statement regarding the date on which EverHome acquired the note was inadmissible under Rule 56(e), Ala. R. Civ. P. That rule provides, in pertinent part:It seems as if five Alabama appellate court justices justed blessed off on Mr. Roper's central evidentiary argument. Mr. Roper has persistently encouraged defendants to challenge foreclosures based upon evidentiary issues.
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."
Fox's affidavit stated, in part:
"In my present position, I have direct access to the books and records of [EverHome] regarding the account which forms the basis of this action and am a custodian of said books and records. I have personal knowledge of the facts set forth in this affidavit and I have reviewed said relevant business books and records. ... I am competent to testify to the matters set forth in this affidavit, which are based upon my review of said books and records and my personal knowledge. "Perry maintains that Fox could not have had personal knowledge of the date on which possession of the note had been delivered to EverHome unless (a) Fox had been involved in the delivery "transaction" or (b) Fox had reviewed a record of EverHome documenting that "transaction." With respect to alternative (b) of his lack-of-personal-knowledge argument, Perry insists that, if Fox had reviewed and relied upon a record of EverHome documenting the "transaction" by which EverHome had acquired the note, then that record should have been, but was not, attached to Fox's affidavit.
Initially, we note that because a blank indorsement allows a party to transfer a note by possession alone, it is unlikely that any formal, documentable "delivery transaction" occurred. EverHome may, however, have made an entry in its files or on its books indicating that the note, a valuable financial asset, had been received and credited to its account on a certain date. Nevertheless, aside from Fox's general assertion that he had reviewed EverHome's books and records and that he had personal knowledge of the contents of those books and records, Fox did not state (and Fannie Mae did not attach documentation to demonstrate) how Fox had gained his knowledge of the date on which EverHome had acquired possession of the note. Those omissions rendered Fox's affidavit testimony concerning the acquisition date of the note inadmissible. See Waites v. University of Alabama Health Servs. Found., 638 So. 2d 838 (Ala. 1994) (physician's affidavit failed to comply with Rule 56(e) because medical records, upon which physician relied for his opinion, were not attached); Pettigrew v. LeRoy F. Harris, M.D., P.C., 631 So. 2d 839 (Ala. 1993) (same); Ex parte Head, 572 So. 2d 1276, 1281 (Ala. 1990) (affiant's statement -- that he had gained personal knowledge of the relationship among the defendants by reviewing probate court records -- did not comply with Rule 56(e) because no probate court records were attached to the affidavit); Smith v. Secretary of Veterans Affairs, [Ms. 2100194, June 24, 2011] So. 3d , (Ala. Civ. App. 2011) (affidavit of loan servicer's vice president, which did not explain how affiant had acquired personal knowledge of assignment of mortgage, mortgagor's default, and commencement of foreclosure proceedings, and to which unsworn, uncertified, or otherwise unauthenticated documents were attached, did not comply with Rule 56(e)). Cf. Welch v. Houston Cnty. Hosp. Bd., 502 So. 2d 340, 344 (Ala. 1987) (physician's deposition testimony regarding his findings, which findings were based on physician's review of hospital chart and interviews with personnel, and not on his personal knowledge, were inadmissible because neither the chart nor affidavits or depositions of personnel who were interviewed by physician were contained in the record).
Attorney Nick Wooten puts a PSA into evidence in Horace and wins a single trial court case. Then two other trial court judges hold otherwise.
Mr. Roper suggests another different strategy which has now been embraced by five Alabama appellate court Judges and is statewide binding authority. Which approach seems most promising?