The Other Selfie: What Exactly is Meant by Self-Authentication?
Federal Rule of Evidence 902(9) allows for the self-authentication of
Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
I haven’t yet had the chance to address Rule 902(9) on this blog, but the recent opinion of the United States District Court for the Eastern District of Wisconsin in Ocwen Loan Servicing, LLC v. Thompson, 2014 WL 51236 (E.D.Wis. 2014), gives me the opportunity. But I’m not sure that the court got it right.
In Thompson,
To recover money owed under the Thompsons’ home financing adjustable rate note, dated April 14, 2000 (the “note”), a proof of claim was filed in the bankruptcy court [by Ocwen] on Wells Fargo’s behalf on May 24, 2005.
At an evidentiary hearing, two versions of a “proof of claim” were presented: One did not have an allonge attached to it while the other one had an allonge by Provident Bank which stated, “Pay to the Order of Wells Fargo Bank Minnesota, NA.” Ocwen failed to produce a witness to authenticate the version with the allonge and instead
took the position that the allonge was self-authenticating commercial paper within the meaning of Federal Rule of Evidence 902(9)…[T]the bankruptcy court rejected that argument….The Final Order adopted the same conclusion, reasoning that: (i) although Federal Rule of Evidence 902(9) requires no extrinsic evidence of authenticity in order to admit commercial paper, a signature on it, and related documents, it does so only “to the extent allowed by general commercial law “; (ii) general commercial law is understood to refer to the UCC; and (iii) Wis. Stat. § 403.308 (forming part of Wisconsin’s adopted version of the UCC) affords only a rebuttable presumption of authenticity which the Thompsons overcame, thereby shifting the burden of proof back to Ocwen.
The bankruptcy court thus found that Wells Fargo did not have standing, prompting Ocwen to appeal. In response, the Eastern District of Wisconsin found that the baknkruptcy court’s
citation in Step Three (Wis.Stat. § 403.308) [wa]s plainly inapposite because that section pertains to disputes about the validity of a signature, whereas the Thompsons based their objection on the absence of an endorsement from Provident to Wells Fargo.
That said, the court ultimately concluded that
Notwithstanding the bankruptcy court’s error in Step Three of its analysis, this Court finds that the bankruptcy court’s ultimate conclusion—”the disputed allonge on its own cannot confer standing on Wells Fargo”—can be sustained without reaching beyond Step One: FRE 902(9). FRE 902 embodies a pragmatic recognition that the odds of certain documentation (including commercial paper) being doctored (or otherwise inauthentic) is sufficiently low that the authenticity of such documentation generally need not be proven by extrinsic evidence.
But here, faced with two materially different versions of the same negotiable instrument (one sans allonge and the other purportedly modified by an allonge), this Court is obliged to concur that application of FRE 902(9) to the latter would be overly mechanistic.
Maybe I’m missing something, but I thought that Federal Rule of Evidence 902 was supposed to be mechanistic. In other words, if a disputed piece of evidence qualifies for admission under Rule 902, it automatically meets the baseline test for authentication and will reach the jury assuming that it satisfies the other rules of evidence. At this point, of course, the opposing party can challenge authenticity, but the Eastern District of Wisconsin seems to be saying that such a challenge can lead to the evidence being deemed inadmissible. I think that’s an incorrect reading of Rule 902.
-CM