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Tuesday, February 15, 2011


Larry Rubin

I am the attorney for the defendant debtor in the above case, which was Commonwealth Financial Systems v. Larry Smith, 2011 Pa.Super. 30 (2011). The original objection to the admission was based upon the inability of the creditor to show regularity in the use of the original creditor's usage of their computer system, similar to the case of American Express v. Vinhnee (9th Cir. Bankruptcy Appellate Panel). The creditor debt buyer, Commonwealth's witness could say nothing about the original creditor, and only asserted that its system and theirs was "SAS-70" qualified, whatever that means. The witness, Danny Venditti (or Vendetti, VP at Commonwealth) testified that Commonwealth would not have bought it if it was not valid, or SAS-70 qualified, therefore bootstrapping his way into authenticity. The trial court had a good nose for "BS" remarking that the "limits of Venditti's knowledge are vast..." and disallowed the exhibits. Commonwealth argued that it should enjoy a presumption of regularity and admissibility because of the "rule of incorporation." This rule, it stated, says that if a debt buyer, or record receiver incorporates the purchased records into its business records, these purchased records become the "business records of the debt buyer," and are thus entitled to come into evidence under the business record exception to the hearsay rule. The Superior Court of PA did not buy this argument, stating that the Supreme Court has rejected the rule of incorporation in the State of PA. The Superior Court also rejected Commonwealth's arguments that "this is the way it is done in the industry," admonishing Commonwealth that it, and not Commonwealth, will decide how things are done in the Pennsylvania legal system. The Superior Court ended by telling Commonwealth that it was a "nice try, but no dice" (loosely paraphrasing). Any comments may be directed to me at l(remove this space)rubin (at)

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