Quick: tell me everything you know about Federal Rule of Evidence 803(17)!
If you’re like me, there’s deafening silence.
I’ve apparently skated through forty years of bankruptcy practice without really considering how Kelly Blue Book figures get into evidence. If it worked, I just went on. (Hint: it’s FRE 803(17).
But a change in California homestead law, and a nudge from Judge Stephen Johnson prompted me to figure it out. Here goes.
California recently increased its homestead exemption and pegged the exemption to the median price of single family homes in the last year in the county.
The change is a boon for debtors and a puzzle for bankruptcy lawyers. How do we find the median price, last year, in this county? And once found, how do we get the result into evidence?
Bankruptcy evidence starts here
Cozy up to FRE 803(17) which makes market reports an exception to the hearsay rule.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
So there you have the answer about why Kelly Blue Book gets in. It’s a commercial publication with market quotations generally relied upon by the public and car dealers.
KBB saves us from having to get an appraiser every time there’s a dispute about car value. And upon a showing that KBB is relied upon in the world outside the courtroom, you get its number into evidence despite it being blatant hearsay.
Hearsay evidence and California home values
So, I’m going to need some exceptional hearsay to prove that my client is entitled to the enhanced homestead based on the sale price of single family homes in this county, last year. Here’s what I’ve found.
The California Association of Realtors gathers and publishes just this kind of information and makes it available on its website. There’s 30 years of data on sales of detached homes, by month, by county. Bingo.
Here’s the report that seems to come closest to what we need, an annual media price for the county. (It came up blank when I first landed there; drag the sliders back to the left and up, respectively, and you get numbers.)
Laying a foundation
Having found a market report, you’ll still have to establish that it fits the hearsay exception: commercial and generally relied upon. That doesn’t seem challenging for CAR. I expect that once the bench sees this a couple of times, there will be no dispute that the CAR’s publication meets the standards for the exception.
Ah, but while a market report may be evidence of the value of a broad class of similar vehicles, in the absence of any evidence of condition it isn’t evidence of value of any specific vehicle. One judge wrote, sustaining my objection to use of NADA guide value, that the creditor had no knowledge of whether the vehicle was in pristine condition, “or on blocks and home to a family of feral cats.”