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PwnTheJdb

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  1. In Colorado, the parties have a duty to confer before submitting a motion. I called but the person who answered wouldn't put the attorney on the phone. So I emailed a copy and let him know I'd be submitting it tomorrow.
  2. Some of those bullets lost their indentation but I think you can figure it out. Update: fixed it.
  3. @gwheelock915 Here is the Motion to Strike: COMES NOW defendant [Hero], in pro se, hereby requesting that the plaintiff’s Affidavit of [Affiant] is stricken from the record. As grounds for and in support of this Motion, the defendant states: C.R.C.P. Rule 56(e) requires that affidavits “be made on personal knowledge, shall set forth such facts as would be admissible in evidence”. [Affiant]'s affidavit is deficient of this requirement in the following ways:[Affiant] asserts that a debt exists between defendant and [OC] but [Affiant] does not claim to have personal knowledge of the alleged debt, how that debt was created, the terms of such debt, or the record keeping practices of the original creditor. [Affiant] only claims to have reviewed pertinent records, which does not constitute personal knowledge of the debt.[Affiant] asserts that plaintiff is the owner or successor of the alleged debt but does not claim to have personal knowledge of the assignment of the alleged debt to the plaintiff, including a valid chain of custody between the numerous intermediary owners of the debt. [Affiant] only claims to have reviewed pertinent records, which does not constitute personal knowledge of the assignment.C.R.C.P. Rule 56(e) requires that “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” [Affiant]’s affidavit is deficient of this requirements in the following ways:[Affiant] refers to a [OC] account number but does not attach the document on which that number appears.[Affiant] refers to an alleged balance owed but does not attach a copy of the document on which that balance appears or documentation for how the amount was calculated.[Affiant] refers to a revolving credit agreement allegedly entered into between defendant and the original creditor but does not attach a copy of the agreement.[Affiant] refers to an assignment of the alleged debt to the plaintiff but does not attach a copy of the document showing such assignment.An affidavit that sets forth only a conclusory assertion without factual allegations to support it is deficient on its face. See USA Leasing, Inc. v. Montelongo, 25 P.3d 1277 (Colo. App. 2001). [Affiant]’s affidavit sets forth only the conclusory allegation that defendant is indebted to plaintiff for certain amounts, but no factual allegations are set forth showing the basis for defendant's alleged indebtedness for such amount, or showing the method by which the specific amounts claimed were calculated. Additionally:[Affiant] concludes that the alleged debt results from a revolving credit agreement but provides no evidence to support the claim.[Affiant] concludes that the defendant allegedly used or authorized the use of the credit account but provides no evidence to support the claim.[Affiant] concludes that the defendant allegedly failed to make payments pursuant to the agreement but provides no evidence of any such agreement or the agreed upon payment arrangement.[Affiant] concludes that the plaintiff owns the obligation sued upon, and was assigned all the rights, title, and interest to the alleged debt, but provides no evidence to support such assignment.Given the preceding, the plaintiff’s affidavit has no probative value and should be stricken from the record. WHEREFORE the defendant requests that the Court issue an order granting the defendant’s Motion to Strike Affidavit of [Affiant].
  4. From JDB attorney (Colorado county court case): I have briefly reviewed your motion. We do oppose it. After a brief review of the motion, my preliminary positions are: 1) the motion is legally improper, because it serves no legally justifiable purpose; and 2) it is sanctionable. Please limit any further communication with my office to written form (ie email or mail) directed to my attention. I will be handling this case and have not authorized my staff to do anything except forward your communications to me. Additionally, because of the level of sophistication show by your pleadings and filings to date, I have a suspicion you are working with an attorney on this case. If you have been receiving assistance drafting your documents, I ask you file amended versions that identify the attorney(s) who have assisted in the drafting of any filings as required by the Rules. Because of this and other concerns I have, I want to be sure to have a record of every communication so that there is no room for interpretation or argument down the road. I respond to email in a timely manner, so this should not have any impact on our negotiations or interactions moving forward, expect to protect all parties involved by maintaining a record of communications. Additionally, in the event you are not working with an attorney, I would caution you that even though you are not an attorney, you are held to the same standards as attorneys admitted to practice in this jurisdiction and that ignorance of the law is not a defense to a claim for attorney fees and costs for the filing of sanctionable document, especially when it has been brought to your attention prior to the filing of your motion. “If a litigant, for whatever reason, sees fit to rely upon his own understanding of legal principles and the procedures involved in the courts, he must be prepared to accept the consequences of his mistakes and errors. One who attempts a major operation, without expert knowledge of the precautions essential to safety, cannot be heard to complain if tragedy results.” Viles v. Scofield, 261 P.2d 148, 149 (Colo. 1953). “A litigant is permitted to present his own case, but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.” Heikes v. Ft. Collins Production Credit Asso., 456 P.2d 274, 275 (Colo. 1969) (reaffirming the principle that a pro se defendant cannot be afforded additional leeway with the rules and law because of their pro se status) (quoting Viles, 261 P.2d at 149). Because of this, you can be held liable, just like an attorney, for any filings that are inadequately researched, unsupported by law and fact, or propounded for an improper purpose. Because I believe your current motion is sanctionable, in the event you decide to file it, I will move for reasonable attorney fees. Lastly, in the future if I fail to respond to an email, my silence is not acquiesence and should not be interpreted as such.
  5. If they truly didn't meet the ten day filing requirement, the process of service is invalid. If process of service is invalid, you should motion to dismiss the case. However, if you file an answer without reserving the issue, you waive your right to the filing requirement. My summons has been continued a month. The Plaintiff needs more time to review my answer.
  6. Nevermind. I called today and the clerk informed me that this was filed 14 days ago. It just didn't appear in their system until today. She was unable to tell me why there was a delay.
  7. Colorado Rules state "The ten day filing requirement may be expressly waived by a defendant and shall be deemed waived upon the filing of a responsive pleading or motion to the complaint without reserving the issue." I'm not certain that sending my answer to the Plaintiff's attorney constitutes filing a pleading, but why would I want to send them an answer and risk waiving the filing requirement? Seems like I should wait for them to file, or show up in court on the date contained in the summons, and ask for a motion to dismiss there as well as request, per the rules, "a reasonable sum in favor of the defendant to compensate the defendant for expense and inconvenience, including attorney's fees, to be paid by the plaintiff or his attorney." Thoughts as to why this wouldn't be the best path?
  8. I was personally served a summons and complaint 15 days ago. In Colorado, the Plaintiff is supposed to file the complaint with the court within 10 days of the date of service. The Defendant has 20 days from the date of service to file an answer. The Plaintiff has missed the deadline for filing. I don't have a case number to put on my answer so I can't file my answer. What should I do?
  9. TemperOfFate, would you mind PMing me? I can't start one. I would love to bounce some details off you for your thoughts.
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