Corporate Personhood

No. 680

Mitt Romney received catcalls when he rejected new corporate taxes (as opposed to individual taxes) on grounds that “corporations are people, too.” At least one media commentator pronounced this a gaffe.

As a matter of fact, Romney was right. There is not a corporate entity in the world that is not owned by people. Its called corporate personhood. Under this doctrine, which is centuries old, a corporation, as an association of individuals, is entitled to many of the rights that an individual has.

Category: Constitutional Law

Nancy Wake, the White Mouse, a Great Hero of WWII, Dies.

No. 679

Photo: History Today

Please take the time to click through to read a short biography published today in History Today about the most decorated Australian of World War II. A fascinating story. Her exploits were the inspiration for the BBC TV wartime espionage thriller “Wish Me Luck”, which you can order through Netflicks.

Few Americans today have ever heard of Nancy Wake. When she died a few days ago, on August 7, at age 98, there was little attention in the American media. If you are interested in seeing for yourself what this great woman was like, watch the following video, parts 1 and 2. It helps us appreciate how much a single person can do.

http://www.youtube.com/watch?NR=1&v=1YAJ9wO5ERc

CLT

Superior Court Declines to Apply Business Records Exception to Electronic Records Created by Third-party Assignor of a Debt.

No. 678

In a case of first impression, a panel of the Superior Court declined to find that electronic records of a credit card account generated by a third party , who had assigned the debt to the plaintiff, were entitled to be admitted into evidence under the business records exception to the hearsay rule of evidence without authentication under the requirements of Pennsylvania Rule of Evidence 803(6) and Section 6108 of the Uniform Business Records as Evidence Act. The Plaintiff in this case could not fulfill the requirements of the rule and statute.

Commonwealth Financial Systems, Inc. (CFS) is in the business of purchasing delinquent credit card accounts in bulk, frequently from assignees of the original issuer. In this case, it took assignment of an account originated by Citibank and initially assigned to another company. This account was reassigned to CFS, which brought suit to collect the debt, including interest, attorneys fees and costs.

Although she did not appear at the arbitration hearing, the cardholder, Ms. Smith, prevailed.

On appeal to the Common Pleas Court, CFS offered various records into evidence. These included, inter alia, bills of sale for the assignments and a computerized spread sheet which had, according to testimony of CSF’s witness, Mr. Venditti, been authored by Citibank and passed along to CSF through the intermediary assignee, NCOP. However, the Superior Court noted the following:

Mr. Venditti acknowledged that he was not familiar with how Citibank or NCOP created or maintained their business records, employed or protected their computers, and electronically transmitted the spreadsheets. N.T., 7/16/09, at 51-54. Moreover, he did not have personal knowledge that the entries on the spreadsheets were made at or near the time of the events or that the data was transmitted by someone with knowledge. Id. at 55. As 495 *495 for the credit card agreement revision dates, Mr. Venditti explained that the last revision before Ms. Smith’s default was made in 1999, and a final revision was made in 2004. Id. at 61. He could not confirm whether the 1996/1997 Citibank credit card agreement applied to Ms. Smith’s account, but he admitted that version did not mention a 23.99% interest rate or 20% counsel fees. Id. at 61-63, 65-67.

In other words, key elements of proof needed to establish that these documents were entitled to admission into evidence under the business records exception were missing. This witness could not provide this critical information because he was not in a position to know it from personal knowledge.

Pa. R. E. 803(6) states:

Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The Uniform Business Records as Evidence Act, 42 Pa. C. S. A. Section 6108 states:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such to justify its admission.

Ms. Smith did not appear to testify. It was trial counsel’s strategy not to produce her and the trial court ruled that the request was made too late. Plaintiffs in such cases often rely upon calling the defendant to elicit an admission of the debt, since this evidence is difficult to obtain otherwise. CFS’s case was also hurt by the fact that it produced a contract form that was generated some years after the issuance of the card and was not signed and did not contain any information linking it to the transaction.

The trial court had held that CFS had failed to lay a proper foundation for the purported business records and refused to admit them at trial. CFS argued on appeal that similar records had been admitted in federal courts and various other states under the doctrine of “incorporation” and that this was a growing trend. By incorporation, it is meant that the assignee relies upon the accuracy of the transmitted data and incorporates it into its business records.

After a careful review of the detailed arguments presented, the Superior Court concluded:

Regardless of a “nationwide trend” and “clear federal precedent” for allowing the introduction of business records consisting of documents generated by third parties, the Pennsylvania Supreme Court has not seen fit to adopt the rule of incorporation. We decline CFS’ invitation to do so. Given the current law of this Commonwealth regarding business records and our narrow standard of review, we discern no abuse of discretion by the trial court in denying admission of CFS’ exhibits.

Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 492 (2011).

Category: Case Update, Consumer Protection, Credit Card Collection Litigation, Evidence

USA AAA.

No. 677

The downgrade was, in its effect, an attack upon America as powerful as the one on September 11, 2001. There was no legitimate purpose for this action, unless the crass manipulation of the stock market to cause the one day loss of billions of dollars to millions of Americans (with more tomorrow) is a justification. It wasn’t justified and we as Americans shouldn’t countenance it.

Make no mistake about it, this action was not made for the salutary purpose of alerting S&P subscribers to the news that the full faith and credit of the United States is not quite as full or quite as faithful as it once was. That’s balderdash!

As Federal Reserve Chairman Ben Bernacki aptly pointed out, no circumstances, including gridlock or outright obstruction, are going to cause the United States Treasury to default. Why? Because it prints money. No, the only foreseeable outcome is panic. S&P should have foreseen that.

On August 8, 2011, S&P recklessly caused a catastrophic financial panic, not only on Wall Street, but around the world. And then, in order to amplify the holocaust, it progressively issued downgrades throughout the day of Fannie Mae, Freddie Mac, Federal agencies and most of the member banks of the Federal Reserve.

The President declared today that the United States always was and still is AAA. As a Nation under siege, every one of us should strongly and vocally stand behind that proposition. Our leaders should stop bickering and loudly proclaim: “USA AAA!”

CLT

Category: The continuing American Revolution

Elijah on Mt. Horeb.

No. 676

At the mountain of God, Horeb,
Elijah came to a cave where he took shelter.
Then the LORD said to him,
“Go outside and stand on the mountain before the LORD;
the LORD will be passing by.”
A strong and heavy wind was rending the mountains
and crushing rocks before the LORD–
but the LORD was not in the wind.
After the wind there was an earthquake–
but the LORD was not in the earthquake.
After the earthquake there was fire–
but the LORD was not in the fire.
After the fire there was a tiny whispering sound.
When he heard this,
Elijah hid his face in his cloak
and went and stood at the entrance of the cave.

1 Kings 19

Category: Pittsburgh Legal Back Talk

Rainy Days.

No. 675

I heard on the weather report this morning that the next four days will bring rain. The cheerleaders who report the weather on TV work on the unspoken assumption that lots of sunshine is the only recipe for a beautiful day. Not so. Rainy days are beautiful, too.

If we wait for the weather to change before we are permitted to be happy, how much happiness do we lose in a lifetime? Negative thinking keeps us from being happy and everything that goes with it.

The same thinking applies to economics. The weather report for the economy is calling for rainy days long into the foreseeable future. They love to scare us with the R word. When someone uses the phrase “in this economy” he is expressing the same brand of negativity as the weatherman. Why even try? All it will do is rain on you!

Yet, some of the largest and most prosperous businesses in America were started during the Depression. “Bad” times create opportunities. Change creates opportunities. And the good news is that change is happening at an ever increasing pace.

Don’t let the weather people, the talking heads or anybody else tell you how to experience life. Life is not a group experience. It is personal. Make your’s a positive one.

CLT

Category: News Commentary
Tags: bad times > negative thinking > positive thinking

Don’t Forget the Warhol.

No. 674

Today would have been Andy Warhol’s 83rd birthday. This is a good opportunity to remind you non-Pittsburghers to visit the Warhol Museum, which is a next door neighbor to PNC Park. Warhol was one of Pittsburgh’s trio of famous Andys. The others were Carnegie and Mellon. No, Andy Russell wash’t as famous as those guys. No, Andrew Jackson lived in Tennessee. So did Andrew Johnson.

Warhol was the only one of the great Andys to be born in Pittsburgh. He’s buried here, too.

And while you are at it, there’s the August Wilson Center. This great 20th Century American playwright was born here too. His name isn’t Andy but there’s a connection. August Wilson spent a great deal of time in the Carnegie Library as a child.

CLT

Category: Pittsburgh
Tags: Andrew Jackson > Andrew Johnson > Andy Russell > Andy Warhol > August Wilson > Carnegie > Mellon

China Law Blog Is Gaining Readership.

No. 673

Check out China Law Blog. Its been gaining readership for some time and is now No. 5 on the AVVO Law Blog list. It appears to be a must read for any lawyer with a client doing business in China. The picture you will get from reading CLB is kind of scary. Almost as scary as it must be for a foreign business trying to figure out how to do business in the United States.

CLT

Category: Blawging
Tags: China

Thank you CCAC, thank you Seminar enrollees

No. 672

I completed a one year cycle of my Continuing Legal Education Seminar on Landlord Tenant Law this week at the CCAC West campus in Oakdale. We did one presentation each quarter at each of the four regional campuses. Most of the attendees seemed to have been satisfied, which is gratifying.

I am working on another seminar on a new topic for presentation starting this November. More information when the course is finalized.

I will also be presenting a seminar for real estate agents to obtain their annual credit. The first evening will be about Landlord-Tenant Law. The second evening will cover mortgage foreclosures, including title issues for resale of properties that have been through foreclosure.

CLT

Category: Legal Education
Tags: CCAC seminars

Lawyerist Added to Blogroll

No. 671

I find that I read the Lawyerist almost every day, so I put it in the blogroll so you can too. Most posts are about law practice management or legal marketing. They are full of ideas and always interesting. Not too long, either.

In some respects, it like Time Management Ninja for lawyers. TMN is also in the blogroll. As a matter of fact, if you go there before August 9, you can get the Kindle edition of a new book on making meetings more productive. Look for the recent article on meetings.

CLT

Category: Blawging, Links, Personal Productivity, Practice of Law
Tags: law practice management > legal marketing

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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