The Lost UCC 3-309 Gizmo

ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT

(a) A person not in possession of an instrument is entitled to enforce the instrument if

(i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and

(iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

Uniform Commercial Code Article 3 specifically defines a negotiable instrument and a Lost Note Affidavit does not meet the Uniform Commercial Codes Article 3 definition of a negotiable instrument. Sub-Subsection (i) of Subsection (a) of UCC 3-309 requires that a party making a claim to re-establish a negotiable instrument, was the party in possession of the negotiable instrument and had rights to enforce the negotiable instrument at the

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time the party lost possession of the negotiable instrument. So long as destruction was not a willful destruction as define by Uniform Commercial Code 3-604, (a) A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument (i) by an intentional voluntary act, such as surrender of the instrument to the party, destruction, Then, according to Uniform Commercial Code 3-309, a negotiable instrument maybe resurrected up as a Lost note Affidavit, but this Lost Note Affidavit is not an instrument that can be negotiated. Now we deal with Sub-Section (b) of 3-309, A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. Mortgage industry practice would be to offer up a printed graphic image of a negotiable instrument obtained from the electronic files a computer system along with the Lost Note Affidavit, and like other affidavits being defined by some courts as Hearsay, so would a graphic image be also Hearsay. Murray, 804 S.W2d at 284 (computer printout is often simply the feeding back of data placed into a computer by a person; although the data may be in a different form than it was when it was fed into the computer, it retains its status as the statement or statements made by a person and thus fits the definition of hearsay).

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BusinessAffidavits AdmissibleorInadmissible
TexasRulesofEvidence ArticleVIII:Hearsay Computerdataashearsay:Rule8012Computerdatathatiscompilationof informationenteredbyapersonishearsay.1 Impeachment:Rule8014(3) Vicarious admissions : Rule 801 (e) (2) (D) A statement made by an agent or employee is admissible against a party if (1) the statement is made by the partysagentoremployee,(2)thestatementconcernsamatterwithinthescope of the agency ore employment, and (3) the statement is made during the existenceoftherelationship.2 Hearsay Exceptions; Availability of Declaratory Immaterial: Rule 803 (6) RecordsofRegularlyConductedActivity.Amemorandum,report,record,ordata compilation,inanyform,ofacts,events,conditions,opinions,ordiagnose,made at or near the time by, or form information transmitted by, a person with knowledge,ifkeptinthecourseofaregularlyconducedbusinessactivity,andif itwastheregularpracticeofthatbusinessactivitytomakethememorandum, report, record, or data compilation, all as shown by the testimony of the custodianorotherqualifiedwitness,orbyaffidavitthatcomplieswithRule902 (10), unless the source information or the method or circumstances of preparationindicatelackoftrustworthiness. Hearsay Exceptions; Availability of Declaratory Immaterial: Rule 803 (15) Statements Affecting an Interest in Property. A statement contained in a documentpurportingtoestablishoraffectaninterestinpropertyifthematter

Murray,804S.W2dat284(computerprintoutisoftensimplythefeedingbackofdataplacedintoacomputerby aperson;althoughthedatamaybeinadifferentformthanitwaswhenitwasfedintothecomputer,itretainsits statusasthestatementorstatementsmadebyapersonandthusfitsthedefinitionofhearsay). 2 BigMackTruckingCo.v.Dickerson,497S.W2d283,28788(Tex.1973)

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stated was relevant to the purpose of the document, unless dealing with the propertysincethedocumentwasmadehavebeeninconsistentwiththetruthof thestatementorthepurportofthedocument. Rule803 UnreflectiveStatements Rule803(1) Presentsenseimpression.Ahearsaystatementisadmissibleunderthe presentsenseimpression exception if the statement (1) describes or explains an event or condition and (2) was made while the declarant wasperceivingtheeventorconditionorimmediatelythereafter.3 (1)Statement describes or explains event. The exception encompasses onlystatementsthatdescribeorexplainaneventorcondition. A. Statement made while declarant was perceiving event or condition or immediately thereafter. Obviously, what constitutes immediately requires judicial discretion, but Texas courts have both admitted and excludeddeclarationsmade30minutesaftertheevent.4 ReliableDocuments Rule803(5):Recordedrecollection Rule803(5)createdahearsayexceptionformemorandaandrecordsthat contain a witnesss recollection about a matter at issue. There are four prerequisitestoadmissibilityunderthisexception:(1)thewitnessmustonce havehadpersonalknowledgebutnowdoesnotrecallthematterwellenough to testify fully and accurately, (2) the statement contained in the recorded recollection must have been either made or adopted by the witness, (3) the recorded recollection must accurately reflect the witnesss prior knowledge,

Implicitintherequirementthatthestatementbemadewhilethedeclarantwasperceivingtheeventorcondition orimmediatelythereafteristhatthedeclaranthavepersonalknowledgeofthefactscontainedinthestatement. 5JackBWeinstein&MargretA.Berger,WeinsteinsFederalEvidence$803.03[2],at80315(JosephM. McLaughlined.,2ded.2009). 4 Harrisv.State,736S.W.2d166,167(Tex.App.Houston{14thDist.]1987,nopet.),MoorevDrummet,478 S.W.2d177,182(Tex.Civ.App.Houston[14theDistrict]1972,nowrit)

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and(4)therecollectionmusthavebeenrecordedwhentheeventwasfreshin thewitnesssmemory.5 Rule803(6):Recordsofregularlybusinessconductedactivity. Rule803(6)createsanexceptiontothehearsayruleforerecordsofacts, events, conditions, opinions, or diagnoses if those records were made at or nearthetimeofeventsdescribedandweremadebyapersonwithknowledge of the events (or from information transmitted by a person with such knowledge). Abusinessrecordmaynonethelessberuledinadmissibleifthesourceof informationorthe methodorcircumstancesofpreparationindicatelackof trustworthiness.6 Rule803(6)(4)Recordmadebyapersonwithknowledgeoftheeventor from on formation transmitted by a person with knowledge. The source of information must be someone with personal knowledge of the events contained within the record.7 The party opposing the admission of the businessrecordshastheburdentoshowlackoftrustworthiness. Rule 803 (6) (9) Reasons to exclude business records. Even if the components of Rule 803 (6)s evidentiary foundation have been established, business records (or certain statements within those records) may still be excludedforthefollowingreasons. Rule 803 (6) (9) (a) lack of trustworthiness. Rule 803 (6) states that a businessrecordmayberuledinadmissibleifthesourceofinformationorthe methodorcircumstancesofpreparationindicatealackoftrustworthiness.8

Tex.R.Evid.803(5);Johnsonv.State,967S.W.2d410,416(Tex.Crim.App.1998) Cranev.State,786S.W.2d338,35354(Tex.CrimApp.1990):Philpotv.State,897S.W.2d848,852(TexApp. Dallas1995,pet.Refd);Porterv.State,578S.W.2d742,746(Tex.Crim.App.1979) 7 Venablev.State,113S.W.3d797,80001(Tex.App.Beaumont2003,pet.Ref') 8 Cranev.State,786S.W.2d338,35354(Tex.CrimApp.1990):Philpotv.State,897S.W.2d848,852(TexApp. Dallas1995,pet.Refd);Porterv.State,578S.W.2d742,746(Tex.Crim.App.1979)

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Lack of trustworthiness is most frequently found when the record was preparedinanticipationoflitigation. Rule 803 (10): Absence of public record or entry. As with Rule 803 (7), dealing with the absence of business records, Rule 803 (10) permits the absenceofapublicrecordtobeevidenceofthenonoccurrenceofaneventof a fact that would have been found in the particular public record had it occurredorexisted. ArticleIX:Authentication&Identification Rule901(b)(1) However, a bare assertion that a particular document is a specifically describeditemisinsufficientauthentication.9 Rule902(10)Businessrecordsaccompaniedbyaffidavit The prerequisites to authentication by affidavit under Rule 902 (10) include(1)therecordsandtheaffidavitmustbefiledwiththecourtclerkat least14daysbeforetrial,(2)noticeofsuchfilingmustbegiventoallparties, (3) the records must be made available for inspection and copying, and (4) theaffidavitmustconformtotheRules803(6)and803(7).

MegaChildCare,29S.W.3dat308(witnessstestimonythatanexhibitwasacopyofadministrativejudgesorder opinionandorderwasinsufficientauthenticationwhenshewasnottheauthoroftheopinionandorder;neither didshepurporttohaveanypersonalknowledgeoftheopinionandorderbywhichshecouldconfidently authenticateacopy.

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