Arrowood Indemnity Co. v. Fasching

                                       749

        Argued and submitted August 13, 2019, affirmed June 17, 2020


             ARROWOOD INDEMNITY COMPANY,
                    Plaintiff-Respondent,
                              v.
                 Douglas Dean FASCHING,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    17CV37770; A167409
                                   469 P3d 271

     Plaintiff, Arrowood Indemnity Company (Arrowood), paid a lending insti-
tution’s insurance claim for losses it sustained after defendant defaulted on his
student loans. Arrowood then brought this subrogation action against defendant.
In support of its summary judgment motion, Arrowood submitted its claims file,
including various proof-of-loss records submitted to it by its insured lending
institution, attached to the affidavit of a knowledgeable employee attesting to the
OEC 803(6) foundational requirements for those records. In his cross-motion for
summary judgment, defendant argued that Arrowood’s affiant failed to satisfy
the foundational requirements of OEC 803(6), resulting in a lack of admissible
evidence and requiring judgment in defendant’s favor. The trial court granted
Arrowood’s motion for summary judgment and denied defendant’s cross-motion
for summary judgment. Defendant appealed. Held: The trial court did not err by
admitting the documents as business records under OEC 803(6) and granting
Arrowood’s motion for summary judgment. Third-party business records con-
tained within another business’s records are admissible when the party offer-
ing the records demonstrates that (1) the third party had a duty to accurately
record the information in the regular course of its business; (2) the third party
had a duty to accurately report that information to the business whose records are
being offered; and (3) that the business whose records are being offered adopted
and relied upon that third-party information in the regular course of its business.
Because Arrowood established those three requirements, the third-party records
were admissible as its own, adopted business records.
    Affirmed.




    Bruce C. Hamlin, Judge pro tempore.
   Jonathan M. Radmacher argued the cause for appellant.
Also on the briefs was McEwen Gisvold LLP.
   Kelly F. Huedepohl argued the cause for respondent. Also
on the brief was Keating Jones Hughes, PC.
750                           Arrowood Indemnity Co. v. Fasching

  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
   MOONEY, J.
   Affirmed.




______________
   * Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 304 Or App 749 (2020)                              751

        MOONEY, J.
         This appeal presents the question of whether proof-
of-loss records submitted in support of an insurance claim
by a lending institution to its insurer are admissible as busi-
ness records under OEC 803(6). After the insurer, Arrowood
Indemnity Company (Arrowood), paid an insured lending
institution’s (Discover Bank) insurance claim for losses it
sustained when defendant defaulted on his student loans,
Arrowood filed this subrogation claim against defendant.
Arrowood filed a summary judgment motion supported by
the signed affidavit of an employee knowledgeable about
Arrowood’s business practices and recordkeeping processes,
and attesting to the OEC 803(6) foundational require-
ments for the proof-of-loss records attached to that affidavit.
Defendant objected to those records as hearsay, contend-
ing that they were not admissible as Arrowood’s business
records because they were the records of Discover Bank and
Citibank (Discover Bank’s predecessor in interest). He also
filed a cross-motion for summary judgment. The trial court
granted Arrowood’s summary judgment motion, denied
defendant’s cross-motion for summary judgment, and
entered judgment in favor of Arrowood. Defendant appeals
from that judgment. We affirm.
         In an appeal arising from cross-motions for sum-
mary judgment, the granting of one motion and the denial
of the other are both reviewable. Eden Gate, Inc. v. D&L
Excavating & Trucking, Inc., 178 Or App 610, 622, 37 P3d
233 (2002). Defendant assigns error to the trial court’s grant
of Arrowood’s motion and the denial of his own motion. We
review each motion “in the light most favorable to the party
opposing it to determine whether there is a genuine issue
of material fact and, if not, whether either party is entitled
to judgment as a matter of law.” O’Kain v. Landress, 299
Or App 417, 419, 450 P3d 508 (2019). There is no genuine
issue of material fact if, based on the record, “no objectively
reasonable juror could return a verdict for the adverse party
on the matter that is the subject of the motion for summary
judgment.” ORCP 47 C. Additionally, we review for legal
error the trial court’s conclusions regarding the admissibil-
ity of hearsay statements under an exception to the hearsay
rule. State v. Cook, 340 Or 530, 537, 135 P3d 260 (2006).
752                    Arrowood Indemnity Co. v. Fasching

         The record on review includes the evidence submit-
ted in connection with both summary judgment motions.
WSB Investments, LLC v. Pronghorn Devel. Co., LLC, 269 Or
App 342, 355, 344 P3d 548 (2015) (citing Nixon v. Cascade
Health Services, Inc., 205 Or App 232, 237 n 4, 134 P3d 1027
(2006)). And, we remain mindful that the failure of a party
to satisfy the burden on his own motion does not mean that
the opposing party has satisfied the burden on his motion.
McKee v. Gilbert, 62 Or App 310, 321, 661 P2d 97 (1983).
         The pertinent facts are undisputed. Defendant bor-
rowed money from Citibank to attend law school. Citibank
purchased an insurance policy from Arrowood insuring
its portfolio of student loans, including defendant’s loans.
Discover Bank purchased that portfolio of loans, including
defendant’s student loans, from Citibank. Citibank’s inter-
est in the associated insurance policy was likewise assigned
to Discover Bank. In 2013, defendant defaulted on his loans.
Discover Bank filed a claim with Arrowood for the losses
it sustained as a result of those defaults. In support of its
claim, Discover Bank submitted proof of defendant’s out-
standing debts, and Arrowood paid the claim. Arrowood
then filed this subrogation claim, seeking reimbursement
from defendant of the amount it paid to Discover Bank.
         In support of its motion for summary judgment,
Arrowood submitted an affidavit of its program director,
McGough, providing foundational testimony to support
the admission of five attached exhibits under OEC 803(6):
(1) Bill of Sale, Assignment, and Assumption Agreement
showing Discover Bank’s acquisition of certain Citibank
assets including defendant’s student loans; (2) loan applica-
tion #1 dated and signed June 22, 1999, disclosure/terms of
loan, payment record and transfer of ownership document
from Discover Bank to Arrowood; (3) loan application #2
dated and signed April 23, 2000, disclosure/terms of loan,
payment record, and transfer of ownership document from
Discover Bank to Arrowood; (4) loan application #3 dated
and signed April 19, 2001, disclosure/terms of loan, payment
record, and transfer of ownership document from Discover
Bank to Arrowood; and (5) copies of checks from Arrowood
to Discover Bank representing payment of the claim related
to defendant’s default.
Cite as 304 Or App 749 (2020)                                 753

         In her affidavit, the program director, McGough,
testified that she had personal knowledge of the business
records maintained by Arrowood in the course of its regular
business functions and that she is trained and authorized in
the use of those records. She testified further that Arrowood
is an insurance company that insures consumer loans,
including defendant’s student loans, and that the lender in
this case (Discover Bank) sought coverage from Arrowood
when defendant stopped making his loan payments. She
further testified:
   “[I] regularly review these proofs of claims as a part of
   my ordinary job function at [Arrowood]. When a claim is
   deemed valid upon review of the proof, [Arrowood] issues
   payment to the Lender, then seeks reimbursement from
   the consumer Defendant. All documents attached hereto
   are either produced and maintained directly by [Arrowood]
   or are documents from the Lender’s proof of claim which
   are adopted by [Arrowood] and relied upon in the ordinary
   course of [Arrowood’s] business. These records were made
   at or near the time of the occurrence or transaction recorded
   by a person with knowledge, and as [Arrowood’s] qualified
   custodian of records I affirm that the attachments are true
   and correct copies of documents maintained by and relied
   upon by [Arrowood] in the ordinary course of its regular
   business functions.”

Arrowood argued that the program director’s affidavit was
sufficient to establish that the records attached to the affi-
davit were excepted from the hearsay rule as Arrowood’s
business records under OEC 803(6).
        The thrust of defendant’s argument is that the
records do not qualify as business records under OEC 803(6)
because they were created and maintained by Arrowood’s
insured lending institution rather than by Arrowood and
because Arrowood did not provide affidavits or other sworn
testimony from that lending institution to lay the proper
foundation under OEC 803(6). Defendant acknowledges on
appeal that the “cross summary judgment motions” raise
a single issue—whether the loan records submitted to
Arrowood in support of Discover Bank’s insurance claim
were admissible as Arrowood’s business records under OEC
803(6). As we explain below, the trial court did not err in
754                      Arrowood Indemnity Co. v. Fasching

concluding that those records were admissible under OEC
803(6).
         Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted in the statement.
OEC 801(3). Such statements are generally not admissible
unless excepted or excluded from the hearsay rule. See id.
(defining hearsay); OEC 802 (stating that hearsay is gen-
erally inadmissible); OEC 803 and OEC 804 (providing
hearsay exceptions); OEC 801(4) (providing exclusions to
hearsay). The reason hearsay is generally not admitted as
evidence is because it is thought to lack the reliability of a
statement made in court, under oath, and subject to cross-
examination. OEC 802; see also Christopher B. Mueller and
Laird C. Kirkpatrick, Federal Evidence § 8:64 (4th ed 2019)
(explaining the purpose of the hearsay rule).
         There are exceptions to the hearsay rule. We regard
certain out-of-court statements as inherently reliable,
and we permit those statements to be admitted into evi-
dence despite the hearsay rule of exclusion. Legislative
Commentary to OEC 803, reprinted in Laird C. Kirkpatrick,
Oregon Evidence § 803.01[1], 777 (6th ed 2013). Business
records have long been considered “inherently reliable,” and
an exception to the hearsay rule has long been carved out
for such records:
      “The following are not excluded by [OEC 802], even
   though the declarant is available as a witness:
      “* * * * *
       “(6) A memorandum, report, record, or data compila-
   tion, in any form, of acts, events, conditions, opinions, or
   diagnoses, made at or near the time by, or from informa-
   tion transmitted by, a person with knowledge, if kept in
   the course of a regularly conducted business activity, and
   if it was the regular practice of that business activity to
   make the memorandum, report, record, or data compi-
   lation, all as shown by the testimony of the custodian or
   other qualified witness, unless the source of information or
   the method of circumstances of preparation indicate lack of
   trustworthiness.”
OEC 803(6).
Cite as 304 Or App 749 (2020)                                  755

         The business records exception exists because,
“despite being hearsay, documents prepared routinely to
record a business’s ordinary commercial activities carry a
presumption of ‘unusual reliability’ incidental to carrying
out the business’s needs and obligations.” Morgan v. Valley
Property and Casualty Ins. Co., 289 Or App 454, 460, 410 P3d
327 (2017), adh’d to on recons, 290 Or App 595, 415 P3d 1165,
rev den, 363 Or 390 (2018); Legislative Commentary to OEC
803, reprinted in Kirkpatrick, Oregon Evidence § 803.06[2],
806; Lepire v. MVD, 47 Or App 67, 74, 613 P2d 1084 (1980).
The “unusual reliability of business records, which makes
them admissible, is variously ascribed to the regular entries
and systematic checking which produce habits of precision,
to actual reliance of the business upon them, and the duty of
the record keeper to make an accurate record.” Legislative
Commentary to OEC 803, reprinted in Kirkpatrick, Oregon
Evidence § 803.06[2] at 806.

          As jurisprudence has developed over the course of
time, statements contained within business records that
were made by persons outside the business have been
excluded as hearsay because the presumption of reliabil-
ity that applies to business records does not apply to those
third-party statements. Morgan, 289 Or App at 461. Johnson
v. Lutz, 253 NY 124, 170 NE 517 (1930), in which the Court
of Appeals of New York considered the admissibility of a
police accident report under a business records exception
analogous to OEC 803(6), is generally regarded as the lead
case on this issue. Morgan, 289 Or App at 461. The report
in Johnson contained hearsay statements from bystanders
that had been voluntarily made to the police officer in the
course of his accident investigation. Johnson, 253 NY at
127-28. In concluding that the hearsay statements were not
admissible under the business records exception, that court
explained that the purpose of the business records exception
is to allow for the admission of certain records

   “without the necessity of calling as witnesses all of the per-
   sons who had any part in making it, provided the record
   was made as a part of the duty of the person making it, or
   on information imparted by persons who were under a duty
   to impart such information.”
756                      Arrowood Indemnity Co. v. Fasching

Id. at 128 (emphasis added). It excluded the statements at
issue, noting that the business records exception
   “is not intended to permit the receipt in evidence of entries
   based upon voluntary hearsay statements made by third
   parties not engaged in the business or under any duty in
   relation thereto.”
Id. Because the witnesses volunteered their statements to
the police officer and were under no duty to do so accurately,
those statements did not possess the indicia of reliability
necessary for admission under the business records excep-
tion to hearsay. Id. at 129.
         Oregon followed Johnson in Snyder v. Portland
Traction Company, 182 Or 344, 351, 185 P2d 563 (1947), in
which the Supreme Court affirmed the exclusion of a police
report that recited voluntary statements made to the police
officer who wrote the report. The Supreme Court again fol-
lowed Johnson in Miller v. Lillard, 228 Or 202, 211-12, 364
P2d 766 (1961), a conversion case, to affirm the exclusion of
a livestock officer’s investigative report that, for the most
part, described what others had voluntarily told him they
had seen.
           More recently, we referred to Johnson when we
reversed the trial court’s admission of a spreadsheet created
by a freelance insurance adjustor because it contained infor-
mation that was voluntarily provided to him by persons who
were not under a duty to report that information to him.
Morgan, 289 Or App at 467. Morgan was a first-party insur-
ance coverage case that arose out of the insurer’s denial of
coverage for losses that arose out of a warehouse fire. Id.
The spreadsheet in question was prepared by an adjustor
retained by the insured plaintiff to document his losses.
Id. at 456. In preparing the spreadsheet, the adjustor included
items that the plaintiff had told him were lost in the fire,
as well as the plaintiff’s own estimates of value. Id. at 457.
The trial court admitted the spreadsheet over the insurer’s
objection, and the plaintiff was awarded the full amount of
damages he sought. Id. at 459. We reversed, explaining that
the third-party information contained in the spreadsheet
(i.e., the insured plaintiff’s statements about items lost and
their value) lacked the indicia of reliability required by OEC
Cite as 304 Or App 749 (2020)                             757

803(6). Id. at 466. The information was unreliable because
the plaintiff was not under a legal duty to truthfully provide
that information. Id. Although the insured plaintiff had a
duty of good faith and fair dealing under the insurance con-
tract, we concluded that the contractual duty did not ren-
der the insurance adjustor’s report “unusually reliable” for
the purposes of the business records exception. Id. (citing
Kirkpatrick, Oregon Evidence § 803.06[2] at 806).

         The “duty to report” requirement thus adhered to in
Oregon is considered a requirement of the business records
exception even though that language is not found in the text
of OEC 803(6). Id. at 462. Where, as here, business records
are offered through the testimony of one business’s custo-
dian of records and they include copies of another business’s
records, the other business’s records are not entitled to the
same presumption of reliability as those prepared directly
by the business whose records are presented by its records
custodian in court. That is because the proponent of the
records is often unable to procure testimony regarding the
third-party’s business process and is, therefore, not able to
independently establish the reliability of that process. Id.
But, like “hearsay within hearsay,” which is not excluded if
“each part of the combined statements” fits within a proper
hearsay exception, OEC 805, third-party business records
contained within other business records satisfying OEC
803(6) may themselves be admitted if they are shown to
possess comparable indicia of reliability or trustworthiness.
State v. Cain, 260 Or App 626, 632, 320 P3d 600 (2014).

         Cain is a criminal case in which the state charged
the defendant with theft under ORS 164.055 when defen-
dant obtained unemployment benefits by wrongfully fail-
ing to report earnings from his work at the Hilton Hotel
(Hilton). Id. at 628. In support of its case, the state pre-
sented a report that it had created, which incorporated
employee earning information submitted by the Hilton to
the Oregon Employment Department (OED). Id. at 630. The
Hilton had a duty to submit the information and to do so
accurately under ORS 657.660(1), OAR 471-031-0005(1), and
OAR 471-031-0085(1). Id. at 635. The trial court admitted
the records as OED’s business records, despite the fact that
758                         Arrowood Indemnity Co. v. Fasching

they contained information submitted by the Hilton, a third
party. Id. The defendant appealed his conviction, assigning
error to the admission of the Hilton’s statements within the
state’s report. Id. We affirmed,1 explaining that the state
satisfied its burden to establish the reliability of the third-
party information within its report. Id. Distinguishing the
facts from those present in Johnson, Snyder, and Miller,
where we affirmed the exclusion of records that included
third-party statements or information using the duty-to-
report rule, we concluded in Cain that
   “the Hilton was not volunteering defendant’s earnings
   information to the department, but rather was under a
   legal duty to provide the information and to do so accu-
   rately. Thus, the reports to the department possess the req-
   uisite indicia of reliability or trustworthiness required for
   admission under the business records exception.”
Id. at 635-36.
         In this case, defendant argues that Arrowood
seeks to “expand the business records exception to give
cart blanche admissibility to insurance companies.” But, as
we have just explained, it is already settled law in Oregon
that records containing third-party statements or informa-
tion may be admitted under OEC 803(6) so long as certain
requirements are met. Id. at 633. Neither OEC 803(6) nor
our case law grants “cart blanche admissibility” to any par-
ticular type of records offered as business records. There
are foundational requirements for all records offered under
OEC 803(6), including third-party records. In addition to
meeting the express requirements of OEC 803(6) for busi-
ness records, when a party seeks to introduce third-party
records or information contained within its own business
records, it must establish that (1) the third party had a duty
to accurately record the information in the regular course
of its business; (2) the third party had a duty to accurately
report that information to the business whose records are
being offered; and (3) the business whose records are being
offered adopts and relies upon that third-party information
in the regular course of its own business. Id.

     1
       We remanded the case for resentencing on other grounds, but otherwise
affirmed the judgment. Cain, 260 Or App at 639.
Cite as 304 Or App 749 (2020)                             759

         Applying that three-part test to this case, we con-
clude that the proof-of-loss records submitted by the insured
lending institution to Arrowood are admissible under OEC
803(6). First, Discover Bank and Citibank each had a duty to
accurately record the loan and payment information in the
regular course of their businesses. See 31 CFR § 1020.410
(requiring accurate recordkeeping practices for banks); ORS
165.080 (prohibiting falsifying business records by making
a false entry, deleting a true entry, or causing the omission
of a true entry with the intent to defraud); ORS 165.007 (pro-
hibiting the creation of a document with the intent to injure
or defraud). Second, Discover Bank had a duty to accurately
report defendant’s loan and payment history to Arrowood
when it made its insurance claim. See ORS 746.100 (prohib-
iting making false representations to obtain benefit from an
insurer). Third, Arrowood established through McGough’s
sworn affidavit testimony that Arrowood adopted and relied
on the proof-of-loss records in the regular course of its own
business and, in particular, to process Discover Bank’s
insurance claim for the losses that arose from defendant’s
default.
         This case is different than Johnson, Snyder, Miller,
and Morgan because, here, (1) Discover Bank was legally
obligated to provide accurate records to Arrowood when it
made its insurance claim and (2) those records were created
and maintained by Citibank and then Discover Bank in
the course of their banking business when they had a legal
duty to do so accurately. Further, (3) Arrowood established
through McGough that it adopted those records as its own
and relied upon them in the regular course of its business.
The reliability of the third-party records was established,
and the trial court did not err in concluding that they were
admissible as business records under OEC 803(6).
         Contrary to defendant’s protestations, this appli-
cation of the business records exception does not represent
a change in Oregon law. The three-part test that we have
articulated logically flows from our case law and from the
principles behind the business records exception. The only
arguable nuance is in the third prong of the test, which con-
cerns the specific requirements for authenticating a docu-
ment originating from a third-party source. However, the
760                            Arrowood Indemnity Co. v. Fasching

authentication requirement not only reflects current Oregon
law, it is also firmly rooted in current American jurispru-
dence on the issue.2
         Defendant also argues that admitting third-party
records under OEC 803(6) results in an “anti-evidence view
of the ‘business records’ exception.” We understand that
argument to be that the lack of first-hand testimony about
the third-parties’ creation and maintenance of the records
results in unreliable evidence being admitted. But, the reli-
ability of the records in this context is established by evi-
dence that Citibank and Discover Bank were statutorily
obligated to accurately document and record defendant’s

   2
     As of the date of this publication:
   1.    Twenty-four states (Alabama, Arizona, California, Connecticut,
         Colorado, Delaware, Florida, Georgia, Hawaii, Indiana, Kentucky,
         Louisiana, Maine, Massachusetts, Montana, New Jersey, New York,
         North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina,
         Texas, Wyoming) have affirmatively articulated similar tests, see, e.g.,
         Jenzack Partners, LLC v. Stoneridge Associates, LLC, 334 Conn 374,
         391, 222 A3d 950 (2020) (“If part of the data was provided by another
         business, as is often the case with loan records in connection with the
         purchase and sale of debt, the proponent does not have to lay a founda-
         tion concerning the preparation of the data it acquired but must simply
         show that these data became part of its own business record as part of
         a transaction in which the provider had a business duty to transmit
         accurate information.”);
   2.    One state (Nebraska) has permitted third party business record
         authentication by statute, see Neb Rev Stat §§ 27-803(5)(b));
   3.    Three states (Idaho, Missouri, Wisconsin) have rejected our approach,
         see, e.g., CACH, LLC v. Askew, 358 SW3d 58, 64 ( Mo 2012) (so rejecting);
   4.    Twenty-three states (Alaska, Illinois, Iowa, Kansas, Maryland,
         Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New
         Mexico, North Carolina, Oklahoma, South Dakota, Tennessee, Utah,
         Vermont, Virginia, Washington, West Virginia) have not addressed
         the specific question, although many have case law suggesting favor-
         able treatment of our three-part test (states indicating favorable treat-
         ment are in italicized bold type), see, e.g., Bavand v. OneWest Bank,
         196 Wash App 813, 826, 385 P3d 233 (2016) (“Reviewing courts broadly
         interpret ‘custodian’ and ‘other qualified witness’ [under the business
         records act]. The statute’s purpose is to permit the admission in evi-
         dence of systematically entered records made in the usual course of
         business without the necessity of identifying, locating[,] and produc-
         ing as witnesses each individual who made the original entries in the
         records. No particular mode or record form is required.” (Citations and
         quotations omitted.)); and
   5.    All federal circuits that have addressed the issue (D.C., 1st, 2nd, 4th,
         5th, 8th, 9th, 11th) have adopted similar tests, see, e.g., MRT Const. Inc.
         v. Hardrives, Inc., 158 F3d 478, 483 (9th Cir 1998).
Cite as 304 Or App 749 (2020)                             761

loans and payment history, to accurately report that infor-
mation to Arrowood when it made its insurance claim, and
by evidence that Arrowood relies on and adopts those bank-
ing records in the ordinary course of its insurance business.
That is sufficient under OEC 803(6). See Lepire, 47 Or App
at 74 (“It is ‘the character of the records and their earmarks
of reliability * * * acquired from their source and origin
and the nature of their compilation,’ * * * that is the test of
whether records are prepared in the ‘regular course of busi-
ness.’ ” (Quoting Palmer v. Hoffman, 318 US 109, 114, 63 S Ct
477, 87 L Ed 645 (1943).)).
          Having concluded that the records are admissible,
we next review the record in the light most favorable to the
opposing party on each motion to determine whether any
genuine issues of material fact remain and whether either
moving party is entitled to judgment as a matter of law.
ORCP 47 C. Arrowood would bear the burden of produc-
tion and persuasion on its breach of contract claim at trial.
No issue was raised by the summary judgment motions on
which defendant would have had the burden of persuasion
at trial. Thus, the burden of production does not shift. Two
Two v. Fujitec America, Inc., 355 Or 319, 324, 325 P3d 707
(2014).
          The evidence before the trial court on the parties’
summary judgment motions included the business records
and authenticating affidavit already discussed. The records
reflect that defendant took out three student loans from
Citibank, Discover Bank purchased those loans, Arrowood
insured Discover Bank’s interest in those loans, defen-
dant defaulted on his loan payments, and Arrowood paid
Discover Bank’s related insurance claim. Defendant did not
offer evidence contradicting or denying the accuracy of the
business records submitted by Arrowood. He argued instead
that Arrowood failed to produce admissible evidence in sup-
port of its summary judgment motion and, because of that,
the trial court should have denied Arrowood’s motion and
granted his. And, while defendant argued that the business
records contained a discrepancy, specifically a reference in
the affidavit to a promissory note that was not attached, his
argument about the impact of the discrepancy goes to the
weight of the evidence—not its admissibility, which we have
already addressed.
762                    Arrowood Indemnity Co. v. Fasching

         Reviewing the relevant evidence and drawing rea-
sonable inferences in the light most favorable to defendant,
the record does not reveal the existence of a genuine issue of
material fact. The records establish defendant’s loans, pay-
ment history and default, insurance claim payments, and
current ownership of the loans by Arrowood. Defendant’s
signature appears on the loan applications, and he has not
offered evidence to suggest that those are not his signatures.
The records show that defendant made loan payments on
each of the loans for a significant period of time. Given the
signatures and evidence of significant past performance,
the absence of the promissory notes does not raise a genu-
ine issue of material fact in this subrogation case. The trial
court did not err in concluding that, on the record before
it, no objectively reasonable juror could return a verdict for
defendant. Arrowood is entitled to judgment as a matter of
law.
        The trial court did not err by admitting the busi-
ness records at issue, and it did not err in denying defen-
dant’s summary judgment motion and granting plaintiff’s
summary judgment motion.
        Affirmed.