# Evidence in Debt-Buyer Cases — OEC 803(6) / 902(11) (Oregon)

The single most important evidentiary issue in Oregon
debt-buyer litigation is the **business-records foundation**
under **OEC 803(6)** and the **self-authentication** option
under **OEC 902(11)**.

This reference covers the doctrine and gives the specific
objection language for use at trial, summary judgment, and
motion-in-limine practice.

> **NOT LEGAL ADVICE.** Verify each rule and case before
> arguing.

## The OEC 803(6) hearsay exception

OEC 803(6) (codified at ORS 40.460(6)) permits the admission
of business records as a hearsay exception. Four foundation
elements:

1. **Made at or near the time** of the events recorded
2. **By, or from information transmitted by, a person with
   knowledge**
3. **Kept in the course of a regularly conducted business
   activity**
4. **Regular practice of that business to make the record**

The foundation must be laid by **a custodian or other
qualified witness**.

## OEC 902(11) — Self-authentication

OEC 902(11) (codified at ORS 40.510(11)) allows the
foundation to be laid by a **certification** from the
custodian (in lieu of live testimony), if:

- The records meet the OEC 803(6) elements
- Notice of intent to use § 902(11) is given to all parties
- Records and certification are made available for
  inspection sufficiently in advance

## Why this matters in debt-buyer cases

A debt buyer's typical evidentiary package:

- Plaintiff's custodian's declaration (under penalty of
  perjury) attesting to plaintiff's records
- The records themselves: an account history, a balance
  statement, the Bill of Sale, the Assignment Schedule

The problem: the records were created by the **original
creditor** (e.g., Bank of America). Plaintiff is offering
them to prove the underlying transactions. Plaintiff's
custodian cannot attest to the original creditor's record-
keeping because:

- They did not work for the original creditor
- They did not observe the original creditor's procedures
- They cannot affirm the original creditor's records were
  made in the original creditor's regular course of business

This is the **"remote custodian"** problem. Under OEC 803(6) /
902(11), the foundation must come from someone with personal
knowledge of the originator's record-keeping.

## The "adopted records" theory and its weakness

Some debt buyers argue that when they bought the accounts,
they "adopted" the original creditor's records as their own
under a "business-records-merger" theory.

**This is weak**:

- OEC 803(6) requires the records to be made in the regular
  course — not adopted later
- The "incorporation" of pre-existing records does not
  transform them into the debt buyer's records
- *See* 9th Circuit cases like *United States v. Pena-Gutierrez*
  (and similar) declining the adopted-records theory

In Oregon, recent Oregon Court of Appeals decisions tend to
side with the defendant on this point, but the case law is
still developing. See `key-cases.md` for the current state.

## What plaintiff needs to authenticate

To authenticate the original creditor's records under OEC
803(6), plaintiff needs:

**Option A: Live testimony from a Bank of America custodian**

Bank of America's record-keeper testifies (in person or by
deposition) about:

- BofA's regular course of business
- BofA's regular practice of making records
- The records are kept by BofA

This is the gold standard. It is also rare — original
creditors do not generally make custodians available for
debt-buyer cases.

**Option B: OEC 902(11) certification from Bank of America**

Bank of America's custodian provides a signed certification
under penalty of perjury attesting to the foundation elements.
The certification is served on all parties with notice of
intent to use under § 902(11).

This is uncommon. Most debt-buyer plaintiffs cannot produce a
BofA certification.

**Option C: Plaintiff's custodian declaration (insufficient)**

Plaintiff's custodian testifies based on plaintiff's
recordkeeping. This does NOT authenticate the original
creditor's records — only plaintiff's records of the account
(which typically consist of payment-tracking data, not the
original transactions).

## Defense objection language

### Hearsay objection (at trial or motion in limine)

```
Objection — hearsay (OEC 802). The records consist of
out-of-court statements by Bank of America regarding the
alleged account; they are offered for the truth of the
matter asserted (that the account existed, that the balance
was X, that payments were made at Y dates). Plaintiff has
not laid the OEC 803(6) foundation because (1) the
declarant is Plaintiff's custodian, not Bank of America's;
(2) the declarant lacks personal knowledge of Bank of
America's record-keeping practices; (3) Plaintiff has not
produced a certification under OEC 902(11) from Bank of
America's custodian.
```

### Lack of authentication objection (OEC 901)

```
Objection — lack of authentication (OEC 901). Plaintiff
must offer evidence sufficient to support a finding that
the matter is what its proponent claims. Here, the
proponent claims these are Bank of America's records of
the alleged account, but the only authentication offered
is Plaintiff's custodian's declaration — and Plaintiff's
custodian has no personal knowledge of Bank of America's
records.
```

### Best evidence objection (OEC 1002)

```
Objection — best evidence (OEC 1002). To prove the content
of the cardholder agreement, the original is required.
Plaintiff has offered only [summary / partial / nothing] in
place of the original cardholder agreement. The exception
for "duplicate" under OEC 1003 does not apply because
Plaintiff has not shown the duplicate is authentic.
```

### Compound objection (combined)

```
Objection — hearsay (OEC 802), lack of authentication
(OEC 901), and lack of business-records foundation
(OEC 803(6)). Plaintiff has not produced a witness with
personal knowledge of Bank of America's regular course of
business or its record-keeping practices. The declaration
from Plaintiff's custodian is insufficient as a matter of
law to authenticate Bank of America's records.
```

## Strategic deployment

### Phase 1: Discovery

Force production of the chain-of-title documents and any
authentication paper plaintiff intends to rely upon. See
`references/rfp-debt-buyer.md`.

### Phase 2: Authentication challenge

Once plaintiff produces (or fails to produce) authentication
material:

- If plaintiff's only authentication is its own custodian's
  declaration → file a motion to exclude under OEC 901 / 803
- If plaintiff offers an OEC 902(11) certification → examine
  it for compliance with the rule's specific notice and
  inspection requirements; many fail technical compliance

### Phase 3: Summary judgment

If plaintiff cannot authenticate the original creditor's
records, plaintiff has no evidence of the alleged debt. File
a Motion for Summary Judgment under ORCP 47 — plaintiff
lacks evidence on an essential element.

### Phase 4: Trial

If the case goes to trial, repeat the objection at every
attempt to admit the records. Get a clean record for appeal.

## Compare to other states

| State | OEC equivalent | "Remote custodian" doctrine |
|-------|----------------|----------------------------|
| Oregon | OEC 803(6) / 902(11) | Generally defense-favorable; case law developing |
| Washington | ER 803(a)(6) / 902(11) | Strong defense-favorable line (*Ziegler*, *Bridges*) |
| Federal | FRE 803(6) / 902(11) | Defense-favorable in 9th Circuit |
| California | Evid. Code § 1271 | Defense-favorable |

The doctrine is similar across jurisdictions. Oregon courts
are generally aligned with the defense view that a debt
buyer's custodian cannot authenticate the original creditor's
records.

## Sample motion in limine

```
DEFENDANT'S MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S BUSINESS
RECORDS UNDER OEC 901 AND OEC 803(6)

I.  RELIEF REQUESTED

    Defendant moves the Court to exclude from evidence at
    trial all records authored by Bank of America, including
    the alleged cardholder agreement, monthly statements,
    and account history, unless Plaintiff produces a
    qualified witness from Bank of America or a compliant
    OEC 902(11) certification.

II. STATEMENT OF FACTS

    [Procedural history; discovery responses]

III. STATEMENT OF ISSUES

     1. Whether records authored by an entity other than
        Plaintiff can be authenticated by Plaintiff's
        custodian under OEC 803(6) / 901.

     2. Whether Plaintiff has produced an OEC 902(11)
        certification from Bank of America.

IV. AUTHORITIES

    - OEC 901 (authentication)
    - OEC 803(6) (business records exception)
    - OEC 902(11) (self-authentication of certified records)
    - [Recent Oregon cases on remote custodian]

V.  ARGUMENT

    A.  Plaintiff's custodian cannot authenticate Bank of
        America's records.

        [Argument citing OEC 803(6) elements and noting
         Plaintiff's custodian's lack of personal knowledge.]

    B.  Plaintiff has not produced an OEC 902(11)
        certification.

        [Argument that the only path to authentication is
         through BofA's custodian, and Plaintiff cannot
         produce one.]
```

## Cross-references

- `or-consumer-debt` SKILL — main bundle
- `references/chain-of-title.md` — chain-of-title doctrine
- `references/rfp-debt-buyer.md` — discovery targets
- `references/key-cases.md` — Oregon and federal precedents
- `or-law-references/references/evidence-rules.md` — OEC
  reference
- `or-law-references/references/court-rules/OEC.md` (when
  populated) — verbatim OEC text