Kpakiwa v. Brazos Student Fin. Corp
In Kpakiwa v. Brazos Student Fin. Corp., 2010 WL 2653413, (Del. Super. July 1, 2010) the plaintiff filed a complaint for breach of contract based on the defendant's alleged breach of a student loan agreement.
At summary judgment, the plaintiff attempted to rely upon the affidavit of its records custodian to establish when defendant was a full time student in order to establish that the plaintiff had filed the complaint within the applicable statute of limitations. This affidavit, however, was based on information that defendant's college sent to the National Student Clearing House ("NSCH").
NSCH then prepared a document indicating when defendant was a full time student, and plaintiff's records custodian relied on this document in preparing the affidavit.
The Court held that the plaintiff could not rely upon this affidavit at summary judgment in that particular case, reasoning that:
"Information provided by outsiders that is recorded in business records may satisfy the business records exception. Importantly, "if the source of the information is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record. The outsider's statement must fall within another hearsay exception...However, if the business entity has adequate verification or other assurance of accuracy of the information provided by the outside person, the business record exception applies. Since the trustworthiness of the evidence is the justification of the business record exception, the verification must provide a strong assurance of accuracy. Here, the records custodian's incorporation and reliance upon the NSCH document in its business may be a basis of reliability of NSCH generated information. However, defendant's college provided the statement that the defendant was a full-time student through 12/15/2001. No evidence was provided about the verification measures routinely taken by NSCH in the compiling of school enrollment data. Without assurances of this nature, a substantial concern exists about the reliability of this potentially critical information."