Redlinehome

Members
  • Content Count

    37
  • Joined

  • Last visited

Everything posted by Redlinehome

  1. refusing to answer in a civil case provides the judge the opportunity to hold you in civil contempt. like i said in my post ... the fifth amendment protects you from incriminating yourself from criminal actions ... not from dumb actions. so far, being dumb is not a crime.
  2. pleadings are public records whether they are online or filed in the office of the court clerk == district court, small claims court, county court, federal court. sometimes the clerks assistants will help you find cases. in larger counties these pleading are computerized and you can search by plaintiff's name. motions for summary judgment typically have rigid time frames and trigger dates. once you file it opposing counsel must answer within 21 days. motions to strike do not have a time frame trigger date and will typically be ruled on by the court in a pretrial hearing. small claims courts do not have pretrial hearings. so motions to strike get ruled on at the trial. the advantage to the motion for summary judgment is the trigger date and the fact that plaintiff must answer within 21 days. if you have the intellectual ability to prepare a motion for summary judgment go for it. put them on that rigid 21 day time frame. i promise you they do not want to work that hard.
  3. You can get any pleading you want online. Get a Pacer Account. Search your defendant's name. Do a Search for my name "Redlinehome" and read my postings in this forum regarding Midland. I think this is a sticky. Here is one of the postings in that chain: In Federal Court all pleadings can be found online. Link Here: https://pacer.login.uscourts.gov/cgi...court_id=00idx Set up an account at the Pacer Website and look at what has been done in your jurisdiction. Anyone can have a Pacer Account. You do not have to be an attorney. Do not loose your password. It will only be sent by mail, ugh. Put it in a safe place. You will find U.S. District Courts and Bankruptcy Courts here. Downside is that there is a charge of ten cents a page. Upside ... a lawyer costs a lot more than that. There is a Plantiff Defendant Index. Just type in the Plaintiff's name and look for pleadings. You don't pay the ten cents until you look at the actual pleading. You can review the docket for free. By looking at the disposition of the case and the nature of the pleadings at the online docket (which is a listing of electronic pleadings filed) you will get a pretty good idea of who was successful Type in Experian ... or any of the Credit Reporting Agencies. Always look at the Motions for Summary Judgment. This will give you a good view of what's hot in these cases. You will get a pretty good idea of which JDB has had the table turned on them with a Counterclaim or Motion for Sanction. How the Business REcord Affidavit was filed and the Motion for SUmmary Judgment should be full of legal precedent for your jurisdiction. You will probably find the very pleadings you might need and can observe successful challenges in your jurisdiction. You do not have to reinvent the wheel.
  4. Either they produce in time or they do not. Why are you sending them letters? Are you AGREEING to give them additional time? Why would you do that? During the trial show they court you requested the documents, they were not produce and now, during the trial they have no evidence. Move to strike any evidence they attempt to admit that was requested and not produced. If they have no evidence, they have no case. Move for dismissal with prejudice. That's their problem if they cannot get their client to answer. You get thirty days. You agree to give them more time or they file a Motion with the Court and ask for additional time. That's it.
  5. yes, there is a way it gets in. hearsay can ALWAYS be used to impeach. further, as an admission against interest, an exception to the hearsay rule, this gets in. do you not realize how many, many exceptions there are to the hearsay rule. plus there is no record in small claims court ... so sure, lots of things happen there that will NOT happen in a court where a court reporter is present and you may appeal from the record. Remember: the Fifth Amendment protection is not used in Civil Cases but only in criminal cases. You plead the Fifth in a civil case and you will be laughed out of court by the Judge and opposing counsel. The Fifth Amendment protection is for self incrimination regarding a CRIME. It does not protect someone from not knowing the law and saying and doing dumb things ... like posting here and believing it is private or posting here and WISHING the Fifth Amendment applied in a case like this. IT DOES NOT. Plain and Simple. Savoring with delight a facial expression ... give me a break. the only thing you will be doing is wiping egg off your face. The judge will think you are an idiot and opposing counsel will eat your lunch. Evidence 101 ---
  6. Go to work for a bankruptcy firm. They need lots of help. Business is really, really good for them. Clean the bathroom, send out mailers to people behind on their mortgage. They have tons of scut work. Then after a month or so, ask if they will 'represent' you. That means you can tell the debt collectors that you have a bankruptcy atty and you qualify for Chapter 7 because you have only a part time job and no assets. Watch them fall all over themselves trying to work with you. Do you have an atty friend? Work for ANY atty and ask if they will allow you to tell your creditors that they are advising you regarding a Chapter Seven Bankruptcy. They get really reasonable when they realize they may get zip for their claims.
  7. Unless they can prove in court that they actually bought YOUR account and have detailed information regarding YOUR account they have no proof. It costs Collection Agencies additional money to buy the details. Usually they just buy the names and and the contractual paper with your Original Creditor. They cannot provide the details regarding your original debt and how it was transferred to them. They cannot sustain their claim. If they try to introduce anything into evidence not previously furnished to you move to exclude.
  8. They do not GET additional time. You do not give them additional time. Only the Court can give them additional time. You will have a hearing on your final issue. Object to any evidence they may try to present because it was not furnished in a TIMELY response to discovery. THey will have no evidence against you. Ask the Court for a Dismissal WITH prejudice. What is this sternly worded letter crap????
  9. I cannot emphasize how strongly I disagree with the previous poster who indicates you cannot challenge a valid Business Record Affidavit from the Original Creditor. Business Record Affidavits are extremely technical and that is where you always begin. Does the affidavit comply with the state's rules on affidavits. Is it made on knowledge of facts or on the infamous INFORMATION AND BELIEF. I still see those INFORMATION AND BELIEF affidavits all the time. Those are NOT AFFIDAVITS. Is it made by a person in authority, familiar with the records, in their capacity as record keeper or HOWEVER YOUR STATE PHRASES IT. You will see a lawyer in one state draft it for evidence in another state all the time and get it wrong. DO NOT BE LAZY. READ THE BUSINESS RECORD AFFIDAVIT STATUTE TYPICALLY IN THE RULES OF EVIDENCE AND THE AFFIDAVIT STATUTE TYPICALLY IN THE RULES OF PROCEDURE. These are two different affidavit statutes but the Business Record Affidavit must comply with BOTH. Be sure it does. Check the notary with your state ... make sure they are authorized and their seal is up to date ... their bond is paid. Notaries do not pay their bonds all the time and their notarization will be INVALID. Go to the notary and ask to see her book and make sure she recorded it correctly if you want to get really technical. If there is big money involved I would do that. Check the amounts ... are they correct and are they consistent. There are errors here often. I have seen one name in the body of the affidavit and another signing the affidavit. That's an out the door violation. DO NOT BELIEVE FOR ONE MINUTE YOU CANNOT FIND AT LEAST A DOZEN THINGS TO CHALLENG ABOUT A BUSINESS RECORD AFFIDAVIT FROM AN ORIGINAL CREDITOR. In my experience one in ten cannot withstand judicial scrutiny. Get the business record thrown out ... you are in trial and they have no evidence. Move for dismissal with prejudice.
  10. The problem with a JDB and a Business Record Affidavit is that they buy this debt in bulk. It does not come with Business Record Affidavits from the Original Creditor. To get a business record affidavit from the Original Creditor will cost the JDB some cash. Not sure how much. Someone on this board ought to know that. They try to get by with these pseudo affidavits that will not withstand judicial scrutiny. Their affidavits (and I am paraphrasing) typically indicate they bought some debt from someone who said it was a valid debt. What they must have is a business record affidavit from the Original Creditor indicating that defendant (you) the Original Debtor entered into an agreement with the Original Creditor whereby you would pay the debt. I have seen them even attach some sort of general agreement to the affidavit and indicate under oath ... that most likely debtor (you) signed an agreement much like the one attached. They know this will not work and it their course of conduct is BAD FAITH for which they should be fined. You should respond with a counterclaim for BAD FAITH in your answer and file a Motion for Contempt to have them sanctioned and BEST OF ALL FINED for pulling these shenanigans.
  11. JURISDICTION AND VENUE USE ONLY IF YOU ARE IN FEDERAL COURT ... OTHERWISE USE YOUR STATE JURISDICTION IDENTIFICATION 1. In response to Paragraph 1 of the Complaint, DEFENDANT admits that Plaintiff has claimed federal jurisdiction pursuant to 15 U.S.C. § 1681(p) and under 28 U.S.C. § 1331. As to the remaining allegations in Paragraph 1, DEFENDANT denies each and every allegation contained therein. 2. In response to Paragraph 2 of the Complaint, DEFENDANT admits that Plaintiff has properly claimed that venue lies in the xxx Division. DEFENDANT also admits it is qualified to do business in the . DEFENDANT states that these are a legal conclusions, not subject to denial or admission. JURY DEMAND 3. Defendant has demanded a jury trial and paid a jury fee. PARTIES FACTUAL ALLEGATIONS 6. In response to Paragraph 6 of the Complaint, DEFENDANT does not have knowledge or information sufficient to form a belief as to the truth of these allegations and, on that basis, denies each and every allegation contained therein. REPEAT STATEMENT OF CLAIM AGAINST DEFENDANT 16. In response to Paragraph 16 of the Complaint, DEFENDANT denies each and every allegation contained therein. 17. In response to Paragraph 17 of the Complaint, denies each and every allegation contained therein. 18. In response to Paragraph 18 of the Complaint, denies each and every allegation contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Neither Plaintiff’s Complaint nor any purported cause of action asserted therein states facts sufficient to constitute a cause of action against DEFENDANT , and further fails to allege facts sufficient to entitle Plaintiff to the relief sought, or to any relief whatsoever, from DEFENDANT . SECOND AFFIRMATIVE DEFENSE (Truth/Accuracy of Information) DEFENDANT is informed and believes, and thereon alleges, that Plaintiff’s claims against DEFENDANT are barred, in whole or in part, because all information DEFENDANT communicated to any third person regarding Plaintiff was true. THIRD AFFIRMATIVE DEFENSE (Indemnification) DEFENDANT is informed and believes, and thereon alleges, that any purported damages allegedly suffered by Plaintiff is the result of the acts or omissions of third persons over whom DEFENDANT had neither control nor responsibility. FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Plaintiff has failed to mitigate his alleged damages and/or injury, if any. FIFTH AFFIRMATIVE DEFENSE (Contributory/Comparative Fault) DEFENDANT is informed and believes, and thereon alleges, that any alleged damages sustained by Plaintiff was, at least in part, caused by actions of Plaintiff and/or third parties, and resulted from Plaintiff’s or third parties’ own negligence, which equaled or exceeded any alleged negligence or wrongdoing by DEFENDANT . SIXTH AFFIRMATIVE DEFENSE (Laches) Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiff’s claims are barred, in whole or in part, by the doctrine of equitable estoppel. EIGHTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver. NINTH AFFIRMATIVE DEFENSE (Independent Intervening Cause) DEFENDANT alleges upon information and belief that if Plaintiff sustained any of the injuries alleged in the Complaint, there was an intervening, superseding cause and/or causes leading to such alleged injuries and, as such, any action on the part of DEFENDANT was not a proximate cause of the alleged injuries. TENTH AFFIRMATIVE DEFENSE (Other Defenses Incorporated by Reference) DEFENDANT hereby adopts and incorporates by this reference any and all other affirmative defenses asserted or to be asserted by any other Defendants in this proceeding. ELEVENTH AFFIRMATIVE DEFENSE (Improper Request for Punitive Damages) Plaintiff’s Complaint does not allege facts sufficient to rise to the level of conduct required to recover punitive damages, and thus all requests for punitive damages are improper. TWELFTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation. THIRTEENTH AFFIRMATIVE DEFENSE (Right to Assert Additional Defenses) DEFENDANT hereby gives notice that it intends to rely on any additional affirmative defenses that become available or apparent through discovery and/or the factual development in this case or otherwise, and thus reserves the right to amend its answer to assert such additional defenses. WHEREFORE, DEFENDANT prays for the entry of judgment in its favor and against Plaintiff as follows: 1. That this action be dismissed in its entirety and with prejudice; 2. That Plaintiff takes nothing by way of the Complaint; 3. For such other relief as this Court deems just and proper.
  12. JURISDICTION AND VENUE USE ONLY IF YOU ARE IN FEDERAL COURT ... OTHERWISE USE YOUR STATE JURISDICTION IDENTIFICATION 1. In response to Paragraph 1 of the Complaint, DEFENDANT admits that Plaintiff has claimed federal jurisdiction pursuant to 15 U.S.C. § 1681(p) and under 28 U.S.C. § 1331. As to the remaining allegations in Paragraph 1, DEFENDANT denies each and every allegation contained therein. 2. In response to Paragraph 2 of the Complaint, DEFENDANT admits that Plaintiff has properly claimed that venue lies in the xxx Division. DEFENDANT also admits it is qualified to do business in the . DEFENDANT states that these are a legal conclusions, not subject to denial or admission. JURY DEMAND 3. Defendant has demanded a jury trial and paid a jury fee. PARTIES FACTUAL ALLEGATIONS 6. In response to Paragraph 6 of the Complaint, DEFENDANT does not have knowledge or information sufficient to form a belief as to the truth of these allegations and, on that basis, denies each and every allegation contained therein. REPEAT STATEMENT OF CLAIM AGAINST DEFENDANT 16. In response to Paragraph 16 of the Complaint, DEFENDANT denies each and every allegation contained therein. 17. In response to Paragraph 17 of the Complaint, denies each and every allegation contained therein. 18. In response to Paragraph 18 of the Complaint, denies each and every allegation contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Neither Plaintiff’s Complaint nor any purported cause of action asserted therein states facts sufficient to constitute a cause of action against DEFENDANT , and further fails to allege facts sufficient to entitle Plaintiff to the relief sought, or to any relief whatsoever, from DEFENDANT . SECOND AFFIRMATIVE DEFENSE (Truth/Accuracy of Information) DEFENDANT is informed and believes, and thereon alleges, that Plaintiff’s claims against DEFENDANT are barred, in whole or in part, because all information DEFENDANT communicated to any third person regarding Plaintiff was true. THIRD AFFIRMATIVE DEFENSE (Indemnification) DEFENDANT is informed and believes, and thereon alleges, that any purported damages allegedly suffered by Plaintiff is the result of the acts or omissions of third persons over whom DEFENDANT had neither control nor responsibility. FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Plaintiff has failed to mitigate his alleged damages and/or injury, if any. FIFTH AFFIRMATIVE DEFENSE (Contributory/Comparative Fault) DEFENDANT is informed and believes, and thereon alleges, that any alleged damages sustained by Plaintiff was, at least in part, caused by actions of Plaintiff and/or third parties, and resulted from Plaintiff’s or third parties’ own negligence, which equaled or exceeded any alleged negligence or wrongdoing by DEFENDANT . SIXTH AFFIRMATIVE DEFENSE (Laches) Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiff’s claims are barred, in whole or in part, by the doctrine of equitable estoppel. EIGHTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver. NINTH AFFIRMATIVE DEFENSE (Independent Intervening Cause) DEFENDANT alleges upon information and belief that if Plaintiff sustained any of the injuries alleged in the Complaint, there was an intervening, superseding cause and/or causes leading to such alleged injuries and, as such, any action on the part of DEFENDANT was not a proximate cause of the alleged injuries. TENTH AFFIRMATIVE DEFENSE (Other Defenses Incorporated by Reference) DEFENDANT hereby adopts and incorporates by this reference any and all other affirmative defenses asserted or to be asserted by any other Defendants in this proceeding. ELEVENTH AFFIRMATIVE DEFENSE (Improper Request for Punitive Damages) Plaintiff’s Complaint does not allege facts sufficient to rise to the level of conduct required to recover punitive damages, and thus all requests for punitive damages are improper. TWELFTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff’s claims are barred, in whole or in part, by the applicable statutes of limitation. THIRTEENTH AFFIRMATIVE DEFENSE (Right to Assert Additional Defenses) DEFENDANT hereby gives notice that it intends to rely on any additional affirmative defenses that become available or apparent through discovery and/or the factual development in this case or otherwise, and thus reserves the right to amend its answer to assert such additional defenses. WHEREFORE, DEFENDANT prays for the entry of judgment in its favor and against Plaintiff as follows: 1. That this action be dismissed in its entirety and with prejudice; 2. That Plaintiff takes nothing by way of the Complaint; 3. For such other relief as this Court deems just and proper.
  13. ORIGINAL COMPLAINT AND JURY DEMAND JURISDICTION AND VENUE 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, in that this dispute involves predominantly issues of federal law. Defendant EXPERIAN INFORMATION SOLUTIONS, INC. (“EXPERIAN”) is liable to the Plaintiff pursuant to provisions of the Fair Credit Reporting Act, 15 U.S.C. § 1681 – 1681x (the “FCRA”). The Court has jurisdiction under 15 U.S.C. § 1681p. 2. Venue lies in the LOCATION because each defendant resides in the Location. 28 U.S.C. § 1391((1). A corporate defendant is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391©. Defendant EXPERIAN is doing business in the LOCATION. JURY DEMAND 3. Plaintiffs demand trial by jury. PARTIES 4. Plaintiff resides in LOCATION. He is a “consumer” as defined by the FCRA, 15 U.S.C. § 1681a©. 5. Defendant EXPERIAN Information Solutions, Inc. is an Ohio corporation registered to do business in the State of Texas. EXPERIAN is a “consumer reporting agency” within the meaning of the FCRA, 15 U.S.C. § 1681a. Service of process on EXPERIAN can be made through its registered agent, CALL YOUR SECRETARY OF STATE OF REGISTERED AGENT. FACTUAL ALLEGATIONS 6. On approximately DATE , the United States Department of the Treasury recorded a lien (the “IRS Lien”) against the property of Plaintiff in the COUNTY AND STATE land records, alleging that Plaintiff was indebted for unpaid federal income taxes. The lien was apparently recorded in Book 12938, Page 255 of those records. 7. Plaintiff paid the taxes due and the Treasury Department filed a release of the IRS Lien in 1998 with the COUNTY CLERK. 8. EXPERIAN added the information about the IRS Lien and its release to EXPERIAN’s database of consumer information. 9. In DATE , Plaintiff obtained a consumer report on himself from EXPERIAN. At that time, the report issued by EXPERIAN showed both the IRS Lien and its satisfaction. 11. Plaintiff’s son went to a Bank branch in to obtain credit. Plaintiff authorized the credit application for himself over the phone with a NAMEBank representative. 12. NAMEBank obtained, as part of its loan underwriting process, a consumer report from EXPERIAN. 13. The consumer report issued by EXPERIAN to NAMEBank on DATE showed the IRS Lien but did not show any satisfaction of the IRS Lien. Based on the apparently unsatisfied IRS Lien, NAMEBank turned down Plaintiff’s application for credit. NAMEBank sent a letter to Plaintiff at Plaintiff’s son’s address informing Plaintiff that his application for credit was denied for derogatory information on the EXPERIAN consumer report. The only derogatory information on Plaintiff’s EXPERIAN consumer report is the erroneous report of the unsatisfied IRS Lien. 14. Equifax Credit Information Services, Inc. is not currently reporting any information about either the IRS Lien or its release on Plaintiff’s consumer report. 15. Plaintiff suffered embarrassment and humiliation because of the incorrect information on the EXPERIAN consumer report. STATEMENT OF CLAIM AGAINST EXPERIAN 16. On information and belief, EXPERIAN failed to maintain reasonable procedures to ensure the maximum possible accuracy of the consumer credit information it reported concerning Plaintiff. 17. EXPERIAN’s actions were willful, or in the alternative negligent, violations of the FCRA. 18. Plaintiff is entitled to actual damages, punitive damages, costs, and reasonable attorney’s fees. WHEREFORE, the Plaintiff prays, after all due proceedings are had, there be judgment herein in favor of the Plaintiff and against the Defendant, as follows: enjoining Defendant from reporting the IRS Lien on Plaintiff’s consumer report; for all reasonable damages sustained by the Plaintiff; for punitive damages; and for attorney’s fees to the extent allowed by law, together with pre-judgment and post-judgment legal interest thereon. The Plaintiffs further pray for all such additional, general and equitable relief as may be necessary and proper.
  14. Pacer will have all Motions. You might want to use your State as the source for Interrogatories because each state has their own unique issues with regard to all Discovery. The only thing we use in Texas that Federal Court does not use is a form of Discovery called Request for Disclosure. These items of Disclosure are presumed in Federal Court. Request for Disclosure asks some basic questions typically found in the interrogatories. Try to look at your State Interrogatories. Motion to Compel is pretty basic. See if you can find a Credit Bureau or a Credit Reporting Agency as a defendant. The reason I suggest Pacer is because it is online, it is easy and there is a good Plaintiff/Defendant index and you will find all the major credit Bureaus being sued in virtually every federal jurisdiction in the United States.
  15. There is one old trick when it comes to records in the possession of another to which you are entitled: Provide a release authorizing them to get the records. This gives both of you equal access and when that happens ... they have to get them. Put a compliance/expiration date on the release of about one month. Obviously, this has intrinsic dangers. Attach the release to your response for their discovery. Good luck.
  16. This is problematic for me. You will probably end up with a Motion to Compel by Midland filed against you. Records you can obtain from a third party -- to which YOU are legally entitled must be obtained from that third party and you MUST MAKE A GOOD FAITH EFFORT TO OBTAIN THEM OR DENY THE ORIGINAL CONTRACT EXISTED. ALL THOSE GOOD SANCTIONS YOU WANT TO USE AGAINST MIDLAND ... BE VERY, VERY CAREFUL. THIS IS NOT A GAME. THEY CAN BE TURNED AGAINST YOU. MIDLAND CAN GET ATTORNEYS FEES. THEY ARE ATTORNEYS. If you can write the original creditor and ask for the records ... and show the court you did this but no response ... you will be in good shape. If anyone has a better way to handle this let me know. Of course, if there is an issue with the original account and it was not yours ... or there is accord and satisfaction ... or the Statute of Limitations has run on the Original Debt ... then Object to their Request Production which is probably supported by interrogatories. This is not abusive on their part. They are fully entitled to take this course of action and the judge will probably back them up. At this point you MUST OBJECT TO THEIR DISCOVERY WITH SOME LEGITIMATE OBJECTION OR RESPOND AND PRODUCE. Also, amend your answer to include affirmative defenses as state above. I WOULD LOVE TO HEAR WHAT ANYONE HAS TO SAY ON HOW TO HANDLE THIS LITTLE WRINKLE. Because you are not just required to produce what is in your possession but what is in someone else's possession to which you entitled. THIS IS NOT A WALK IN THE PARK. THIS IS NOT GIN RUMMY. THIS IS COURT. THIS IS REAL AND THESE GUYS CAN TURN THE TABLE ON YOU. A few posts ago you were thinking you could get attorneys fees ... YOU REALLY NEED TO KNOW WHAT YOU ARE DOING HERE. BE VERY CAREFUL IN RESPONDING TO THEIR PLEADINGS. This could be a huge trap for the unwary.
  17. Look at the answers filed by a firm like Jones Day that represents Experian. Go to the Pacer website and set up an account. They plead every damn affirmative defense whether it makes sense of not. Look at what the big boys do in Federal Court and copy them. Type in Midland and see how the pros are handling this. Maybe start with Texas Northern District since they are a Texas Corp. Be a Pro -- you can and you can actually do a better job than they are doing. USE PACER. IT IS YOUR FRIEND. IT IS FOOLISH, FOOLISH, FOOLISH NOT TO LOOK AT THE PLEADINGS THAT SERIOUS ATTORNEYS USE. I would: File an answer with every affirmative defense listed. Now, in Federal Court you will NOT find Request for Disclosure. That is automoatic in Federal Court but many states have them. On Pacer and in Federal Court you will find: Interrogatories Request for Production Request for Admission If you state has Request for Disclosure you will find that in the Rules of Civil Procedure but you will not find a sample on Pacer which is for Federal Courts since Federal Courts to not use them. File a Motion for Summary Judgment == that will blow their mind. You will find some very good ones on Pacer. If they have filed a Business Record Affidavit in their Original Petition file a Motion to Strike the Business Record Affidavit. (Governed by the rules of evidence for business record affidavit and rules of civil procedure for the contents of an affidavit. USE BOTH Rules of Evidence and Rules of Procedure.) File a Motion in Limine --- use a standard one and then add Limine instrutions for the Business Record or whatever you want to keep out. DO NOT FORGET TO CHECK THE LOCAL RULES OF PROCEDURE FOR WHATEVER COURT YOU ARE IN. THIS MAKES A BIG DIFFERENCE. YOU HAVE YOUR STATE RULES OF PROCEDURE BUT MANY, MANY COURTS HAVE THEIR OWN RULES. They are typically on line. If the Court likes to have a scheduling conference by all means set one! Ask for scheduling. Which means deadlines by which certain things must be done. You do not want surprises. You want them to comply with a tight schedule and deadlines. Now ... do not expect the court to automatically set your Motions for hearing. YOU MUST DO THAT. I KNOW ONE PRO SE WHO WAITED TWO YEARS AND WONDERED WHY THE MOTIONS WERE NEVER SET. WITH EACH MOTION FILE AN ORDER SETTING HEARING. There are samples on Pacer. This is crucial. Use self addressed stamped envelopes to have stamp filed copies returned to you. Have a cover letter which explains to the District Clerk that you want your pleadings filed, your Motion Set, and stamped filed copies returned. There is a small fee to file Motions. Usually $15.00. Call your District Clerk and ask what the fee is. Include that in your letter to the clerk to file the motion, return a stamp filed copy and have it set and return the Order Setting hearing. So you will need two SASE -- one for the stamped filed copies and one for the Order Setting Hearing. If you do not get the Order Setting Hearing back in two weeks: CALL. If you have combined motions == you will only pay one fee and you CAN COMBINE YOUR MOTIONS. If they do not answer your discovery or do a second rate job of answering it? MOTION TO COMPEL. AND THE BEAUTIFUL MOTION TO DISMISS (WITH SANCTIONS). There will be some excellent examples on Pacer. Be sure to include a request for Sanctions for not answering or producing in accord with the law as state in your Discovery Section of your State Rules of Civil Procedure. MOTION TO DEEM ADMITTED, TO COMPEL, TO DISMISS, TO STRIKE BUSINESS RECORD AFFIDAVIT AND FOR SANCTIONS For failure to answer Requests for Admissions ... Motion to Deem Admitted. For evasive answers to Interrogatories ... file Motion to Compel with Sanctions and explain how they are being evasive for each one. For Request for Production Motion to Dismiss if what they need to produce is the heart and soul of the case like your original contract with original creditor. You will probably have to do this. Get ready for it. Be aggressive have the hearing set as quickly as possible. File a Motion for Sanctions for filing a case with no damn prooof. Your State Rules of Civil Procedure will have one Rule on Sanctions. Quote and apply to your situation. Cannot get attorney's fees if not an atty but can get sanctions. YOU DO NOT WANT YOUR MOTIONS SET ON THE SAME DAY AS YOUR HEARING. YOU WANT THEM SET IN ADVANCE. MAKE THE ATTORNEY SHOW UP, SIT THROUGH A MOTION MORNING ... THERE WILL BE TWENTY SET .... MAKE THEM EARN THEIR DAMN MONEY. ALSO LETS YOU GET READY BASED ON WHAT YOU GET AT THE MOTION HEARING. REPEAT -- DO NOT HAVE YOUR MOTIONS SET ON THE SAME DAY AS YOUR FINAL HEARING. BIG - BIG DEAL. THIS IS JUST A WAY TO SCREW YOU. (yet another.)
  18. 8-)This might be a very good one if they cannot produce the original contract signed by you. Some of these companies are producing a general agreement used in the general time frame the account was opened but not the ORIGINAL CONTRACT. Plead the Statute of Frauds and you are saying okay, they say breached a written contract. Where the hell is this written contract? To be enfoceable this contract must be in writing and signed by ME. Now where is it? STATUTE OF FRAUDS To be enforceable, a promise or agreement must be (1) in writing and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized, if the promise or agreement is one of the following: (1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate; (2) a promise by one person to answer for the debt, default, or miscarriage of another person; (3) an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation; (4) a contract for the sale of real estate; (5) a lease of real estate for a term longer than one year; (6) an agreement which is not to be performed within one year from the date of making the agreement; (7) a promise or agreement to pay a commission for the sale or purchase of: (A) an oil or gas mining lease; ( an oil or gas royalty; © minerals; or (D) a mineral interest; and (8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code. This section shall not apply to pharmacists. Tex.Bus.&Com.Code § 26.01 When, either because of the agreement's terms or the nature of the required acts, the agreement cannot be performed within one year, the statute of frauds applies and renders any non-complying agreement unenforceable. Niday v. Niday, 643 S.W.2d 919, 920 (Tex.1982). Where parties enter into a contract without explicitly mentioning a time for performance, courts must determine whether the parties intended to complete the contract within a year. Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 16 (1957). In making this determination, we frame our inquiry in terms of what is a “reasonable time” to complete performance of the contract measured in days or years “in light of the circumstances before [the parties] at the date of the contract.” Id. The statute of frauds does not apply when the parties do not fix the time of performance and the agreement itself does not indicate that it cannot be performed within one year. Niday v. Niday, 643 S.W.2d 919, 920 (Tex.1982). THE TIME LIMITATION HAS RUN IS AN AFFIRMATIVE DEFENSE 20. STATUTE OF LIMITATIONS Each cause of action has a period within which a plaintiff must file a suit on a particular cause of action. This is called the limitation period for the cause of action. Chapter 16, Tex. Civ. Prac.& Rem. Code, establishes the limitation period, for each cause of action of type of cause of action in Texas. A cause of action is barred if not filed within the limitation period of the statute of limitation applicable to the particular cause of action.
  19. Affirmative defenses are claims by one party that defeat a cause of action or claim established by another party. Cook Composites Inc. v. Westlake Styrene Corp., 15 S.W.3d 124 (Tex. App.- Houston [14th Dist.] 2000, pet dism’d). Affirmative defenses operate to limit or excuse or avoid a party’s liability and/or limit the amount of another party’s damages for which the party is responsible, even if the factual allegations of the other party’s claims are admitted or proven. To assert an affirmative defense to another party’s claim in a lawsuit, the party must plead or describe the facts that constitute the defense. 1. Accord and satisfaction; WHICH MEANS I PAID THE DAMN THING YOU IDIOT. 2. Collateral estoppel; WHICH MEANS YOU TOOK BACK PROPERTY WHICH WAS WORTH MORE THAN THE DEBT. 3. Discharge in bankruptcy; WHICH MEANS THIS HAS BEEN SETTLED IN THE BANKRUPTCY COURT YOU IDIOT. 4. Duress; WHICH MEANS I PAID YOU WHEN YOU HELD A GUN TO MY HEAD, MY DOG'S HEAD, MY EX-WIFE'S HEAD 5. Equitable Estoppel; WHICH MEANS THIS IS NOT FAIR BECAUSE YOU TOOK MY HOUSE WHICH WAS WORTH MORE THAN THE DEBT. 6. Failure of consideration; WHICH MEANS THE PIECE OF **** YOUR SOLD ME BROKE BEFORE I GOT OUT OF THE DAMN STORE. 7. Failure to mitigate damages; WHICH MEANS YOU COULD HAVE SOLD THE PIECE OF **** CAR TO SOMEONE ELSE BUT YOU JUST SAT ON IT AND SUED ME INSTEAD. 8. Failure to satisfy a condition precedent; WILL NEVER COME UP 9. lllegality; A MINOR COULD USE THIS 10. Judicial estoppel; THE COURT HAS RULED ON THIS 11. Laches; MOSTOF THESE WILL NEVER COME UP 12. Mistake; 13. Novation; 14. Proportionate Responsibility; 15. Quasi-estoppel; 16. Ratification; 17. Release; 18. Setoff and recoupment; 19. Statute of frauds; SEE BELOW 20. Statute of limitations; SEE BELOW 21. Waiver. ____________________________________________________ 1. ACCORD AND SATISFACTION The accord and satisfaction defense rests upon a contract, express or implied, in which the parties agree to the discharge of an existing obligation by means of a lesser payment tendered and accepted. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969). The elements of accord and satisfaction are (1) An express or implied new contract to discharge an existing obligation with something different from what the parties contemplated in the original contract, and (2) the new contract was performed. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969). “Accord and satisfaction” is a well recognized legal method of discharging any kind of a contract or cause of action, where the parties agree to give and accept something in settlement of the claim or demand of one party against the other party, and the parties perform such agreement. The “accord” is the agreement to discharge or settle the contract or cause of action, and the “satisfaction” is the execution or performance of the accord. Slaughter v. Temple Lumber Co., 307 S.W.2d 108, 115 (Tex.Civ.App.--Houston 1957, writ ref'd n.r.e.). For a dispute over a liquidated claim to constitute the basis for an accord and satisfaction, the dispute must be bona fide and not a mere denial of liability simulated for the purpose of forcing a settlement or escaping liability in whole or in part. Buford v. Inge Const. Co., 279 S.W. 513, 515 (Dallas Tex.Civ.App., 1925, no writ hist.).
  20. In most states you CANNOT sue for attorney's fees for representing yourself UNLESS you are a licensed attorney. You file a Motion for Sanctions. GUESSING IS NOT BRAINSTORMING AND IS COUNTERPRODUCTIVE AND DANGEROUS. DO YOUR HOMEWORK. KNOW THE LAW DO NOT LOOK LIKE AN IDIOT. LEAVE THAT TO THEM. COPY THE LAW AS RELEVANT TO YOUR CASE AND TAKE IT TO COURT WITH YOU. If your case has not been heard you may amend your answer to include: 1. Motion for Sanctions 2. Counterclaim Most jurisdictions require that this be done within thirty days of the date the court will hear the cause of action. File your discovery WITH your counterclaim. This is so important. 1. Request for Disclosure 2. Interrogatories 3. Request for Admissions 4. Request for Production of Documents These are governed by the Discovery Section of your State's Rules of Civil Procedure. Also check to see if the Court in which you are filing has their own local rules. If you suit has been resolved you are too late for your Motion for Sanctions but you can file a separate suit for what you should have included in your counterclaim. However, now with a new suit you will have to pay filing fees and have your suit served on their Registered Agent for Service of Process which you can typically find through the Secretary of State. Save your self tons of heartache and expense -- File a COUNTERCLAIM and a Motion for Sanctions (goverened by the Rules of Civil Procedure) with your answer. If you must file it separately within your lawsuit or file it with your answer. Also file all AFFIRMATIVE DEFENSES WITH YOUR ANSWER. If you do NOT claim your affirmative defenses in your anwser you may NOT introduce them during trail. It is TOO LATE. What is an AFFIRMATIVE DEFENSE that might be relevant. Look in your State's Rules of Civil Procedure under AFFIRMATIVE DEFENSES. SO WHAT DOES YOUR ANSWER DO? It keeps your case alive and puts you in court. It says you are not rolling over and playing dead. If you do not file an answer a Default Judgment may be taken against you. It allows you to deny the Plaintiff's case against you. It allows you to file a counterclaim. It allows you to file a Motion for Sanctions. It allows you to file Discovery. It allows you to file AFFIRMATIVE DEFENSES and if you do not file them YOU WAIVE THEM. AND THERE ARE SEVERAL YOU WILL NEED. SEE MY NEXT POST. YOUR ANSWER DOES NOT EXCLUDE THE BUSINESS RECORD AFFIDAVIT FROM EVIDENCE. The affidavit is probably correct as far as it goes. The point is it does not go far enough. This must be excluded with a written Motion to Strike or an oral hearsay objection. See my previous posting on Motion to Strike. And note: Motions must be filed within a certain time frame which is different in Federal Court than it is in State Court. Read your Rules of Civil Procedure on Motions. See next post for Affirmative Defenses which MUSt be plead in your answer at least in Texas.
  21. In Federal Court all pleadings can be found online. Link Here: https://pacer.login.uscourts.gov/cgi-bin/login.pl?court_id=00idx Set up an account at the Pacer Website and look at what has been done in your jurisdiction. Anyone can have a Pacer Account. You do not have to be an attorney. Do not loose your password. It will only be sent by mail, ugh. Put it in a safe place. You will find U.S. District Courts and Bankruptcy Courts here. Downside is that there is a charge of ten cents a page. Upside ... a lawyer costs a lot more than that. There is a Plantiff Defendant Index. Just type in the Plaintiff's name and look for pleadings. You don't pay the ten cents until you look at the actual pleading. You can review the docket for free. By looking at the disposition of the case and the nature of the pleadings at the online docket (which is a listing of electronic pleadings filed) you will get a pretty good idea of who was successful Type in Experian ... or any of the Credit Reporting Agencies. Always look at the Motions for Summary Judgment. This will give you a good view of what's hot in these cases. You will get a pretty good idea of which JDB has had the table turned on them with a Counterclaim or Motion for Sanction. How the Business REcord Affidavit was filed and the Motion for SUmmary Judgment should be full of legal precedent for your jurisdiction. You will probably find the very pleadings you might need and can observe successful challenges in your jurisdiction. You do not have to reinvent the wheel.
  22. Federal Rules Require a Motion to Strike or hearsay objection. Hearsay objections for Business Records are tricky and most lawyers actually read from the rule in court when making it. THat has to do with appellate scrutiny and no reason to go into that here. FOr that reason think Motion to STrike is best way to go especially if someone has given it to you on these boards. So ... I would assume virtually all states require that a Motion to Strike be filed or hearsay objection. You can make the Motion in Court BUT you will not be at your best. It's hard enough for attorneys to get this right. Do it before trial -- and there is a time frame -- give the Judge a chance to look at your pleadings and case law ... and find a case in your state if you can similar to the El Paso Midland case. It will get Douche Bag to back down. An Answer only answers and DENIES the Claim/Petition filed against you. It does not challenge the admissability of the Business Record Affidavit which might also turn up in a Motion for Summary Judgment. File the Motion to Strike dont make on oral Motion in Court. Look at the Rules of Evidence of your State for Business Record requirments. Most States follow the Federal Rules anyway. Look at the Rules of Civil Procedure for Motion to Strike and what is required but the Motion I posted would work fine in federal court and I am betting would work in virtually every state in the country ... but cite your own Rule of Evidence on a Business Record and your own Rule of Civil Procedure on Motion to Strike and Motion for Sanctions for being douche bags. Don't forget to look at the Rule of Civil Procedure on Sanctions for the Douche Bag filing the worthless piece of **** affidavit. And not just NO but hell NO your Answer does not do a damn thing to keep the Business Record affidavit out. It just denies the validity of the thing. No, No, No. YOU DO NOT WANT THE BUSINESS RECORD AFFIDAVIT ADMITTED INTO EVIDENCE BECAUSE IT IS NOT EVIDENCE. IT IS NOT A BUSINESS RECORD. A BUSINESS RECORD AFFIDAVIT IS A STATUTORY CREATURE. IT IS CREATED BY LAW. IT MUST PAST CERTAIN TESTS. IF IT DOES NOT THE BURDEN IS ON YOU TO POINT THAT OUT. You do not want to deny the validity of the BUSINESS RECORD AFFIDAVIT you want to challenge its use as evidence. Does that make sense? You want the affidavit striken. There is nothing in there to deny unless you are fall into the TRAP of believing that denying it in your answer defeats it. What the Business Record Affidavit says is probably true. But who cares. Is it evidence of the original contract and the breach of the original contract? Or is it just a Douche Bag JDB saying we bought this Jund Debt. If so THAT IS NOT GOOD ENOUGH. (Did you actually read the El Paso Midland case -- you should.) THE BUSINESS RECORD AFFIDAVIT IS NOT EVIDENCE. That's the point here. It has been filed and probably timely. It is in evidence. Now YOU MUST MOVE TO STRIKE IT or Object to Hearsay in Court because IT DOES NOT MEET THE REQUIREMENTS OF A BUSINES RECORD AFFIDAVIT AS DEFINED BY THE RULES OF EVIDENCE OF YOUR STATE. I hope this is clear. I EMPHATICALLY DISAGREE WITH THE ADVICE "DO NOT WORRY ABOUT THE BUSINESS RECORD AFFIDAVIT." DEAL WITH IT. FILE A MOTION TO STRIKE. Worry about presenting this to the court. Worry about understanding the Rules of Procedure and Evidence that govern this. Worry about getting sanctions ... because if they cannot prove they have any evidence to base their law suit on ... guess what? You are entitled to sanctions. When Douche Bag asks for a dismissal say FINE ... but I want my hearing on Sanctions. I filed a Motion for Sanctions because they filed a damn lawsuit against me without any damn evidence. I want them sanctioned. These are big boys. They do this for a living. They know what they need to have to sue me and they did not have it. There are thousands of people that fall for this. I want them sanctioned for this for doing it to me but I want the court to remember the thousands and thousands of people who are not here -- who have not filed a Motion for Sanctions. I WANT PUNITIVE SANCTIONS SO THIS **** STOPS HERE AND STOPS NOW. Worry big time about this because it is the heart and soul of your case.
  23. Sec. 10.001. SIGNING OF PLEADINGS AND MOTIONS. The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry: (1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual contention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) each denial in the pleading or motion of a factual contention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief. 18. Should the Court find the affidavit represents a violation of CPRC 10.001, the remedies are defined in CRPC 10.04: (a) A court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both. ( The sanction must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated. © A sanction may include any of the following: (1) a directive to the violator to perform, or refrain from performing, an act; (2) an order to pay a penalty into court; and (3) an order to pay to the other party the amount of the reasonable expenses incurred by the other party because of the filing of the pleading or motion, including reasonable attorney's fees. (d) The court may not award monetary sanctions against a represented party for a violation of Section 10.001(2). (e) The court may not award monetary sanctions on its own initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party or the party's attorney who is to be sanctioned. 19. WHEREFORE, Plaintiffs request that the Court consider this matter, and that upon hearing, the Court sustain Defendant’s objection to Plaintiff’s business record affidavit; strike the affidavit find a remedy in Tex. R. Civ. P. 13 or in Chapter 10 of the Tex. Civ. Prac. & Rem. Code, or provide any other remedy, either in law or in equity to which Defendant may be justly entitled.
  24. See the case I previously reported and include here: 12. On point is the case of Martinez v. Midland Credit Management, 250 S.W.3d 481; 2008 (Tex. App.–. El Paso 2008) which follows the McClure doctrine. The judgment of the trial court was reversed and remanded. INSERT CASE HERE IV. MOTION FOR SANCTIONS 13. Plaintiff has presented an affidavit with false representations. The filing of an affidavit that is groundless or made in bad faith is addressed in TRCP 13, which state in pertinent part: 14. The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion or other paper; that to the best of their knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith of groundless and brought for the purpose of harassment. … If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or other paper is signed in violation of this rule, the court upon motion oru upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both [emphasis added]. 15. Sanctions available pursuant to Rule 215.2b are in pertinent part: Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under Rules 199.2((1) or 200.1( to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, including an order made under Rules 204 or 215.1, the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following: (1) an order disallowing any further discovery of any kind or of a particular kind by the disobedient party; (2) an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him; (3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party; (6) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (7) when a party has failed to comply with an order under Rule 204 requiring him to appear or produce another for examination, such orders as are listed in paragraphs (1), (2), (3), (4) or (5) of this subdivision, unless the person failing to comply shows that he is unable to appear or to produce such person for examination. (8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment. 16. In this case the false affidavit occasioned additional expense including costs, delay, and was used for the improper purpose of attempting a fraud upon the Court. Plaintiff has attempted to create a liability for the Defendant by knowingly making a false statement of facts. 17. The filing or an affidavit that is groundless or made in bad faith is address in CPRC 10.001, which states:
  25. WHILE THIS IS TEXAS LAW I AM SURE YOUR STATE HAS ITS OWN VERSION OF ALL THESE STATUES. THEY WILL NOT BE HARD TO FIND. THIS CASE HAD NOT ONE BUT TWO INVALID AFFIDAVITS. ONE FROM THE CRA AND THEN THE CRA RELIED ON A HEARSAY WHICH WAS HEARSAY. HOPE THIS HELPS. DEFENDANT’S OJECTION AND MOTION TO STRIKE PLAINTIFF’S BUSINESS RECORD AFFIDAVIT AND MOTION FOR SANCTIONS This Business Record Affidavit of xxx, 2008, purportedly signed by one xxx, and employee of Douche Bag JDB attempts to perpetuate a fraud on this Court. The records attached to the Affidavit are records of xxx Bank and kept by Fleet Bank and not by Douche Bag JDB. 3. While the body of the affidavit indicates it is signed by “xxx” the signature is illegible and there is no printed name associated with the signature. The signatory to the affidavit is unknown. 4. The records, identified as xxx Bank records in the affidavit of dated, xxx , 2008, (which are admittedly not records created by Douche Bag nor claimed to be created by Douche Bag) are not identified as reflecting the account associated with DEFENDANT. But rather in the DATE Affidavit are identified as associate with “Plaintiff’s history for the account and records for the account.” Affiant claims the records have been “obtained and integrated” but for what purpose and for which account is wholly unknown. 5. Nowhere in the affidavit is it stated that the records were made by DOUCHE BAG with knowledge of the act or event made at or near the time or reasonably soon thereafter of the occurrence of the recorded event. Rule 902 (10) of the Texas Rules of Evidence referred to as the Business Records Affidavit require that the affiant swear that: The records are kept by the PARTY (DOUCHE BAG ) in the regular course of business and it was the regular course of business of DOUCHE BAG for an employee or representative of DOUCHE BAG for an employee or representative of DOUCHE BAG , with knowledge of the act, event, condition, opinion recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The affiants’ foundation is so weak as to fail to meet the minimal standards of authentication as established by Article 9. 6. The Second Affidavit of dated ..., signed by xxx attempts to attest to the records of Bank. In addition the Second Affidavit refers to a “just and true total principal balance with interest” that is nowhere reflected in the records the defective affidavit purports to shepherd into Court. 7. The Second Affidavit of 2005, incorporates the argument made in the previous Paragraph Five as applicable to the affidavit of Second Person. 8. There is no evidence or any demand made upon the Defendants for payment as reflected in the Affidavit. Consequently, this claim is not supported by a business record attached to the affidavit. 9. The records that both Affidavits attempt to admit are not originals or duplicates thereof but are computer generated records from DOUCHE BAG III. ARGUMENTS AND AUTHORITIES 10. Plaintiff failed to satisfy the requirements for the business records exception to the hearsay rule, TEX. R. CIV. EVID. 803(6). The Plaintiff was required to establish a predicate which includes proof that the “business” is the kind that conducts a regular organized activity, and that the affiant is knowledgeable of that activity. No such proof is included in the Affidavit. 11. Rule 803(6) reads as follows: Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information 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 compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.