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Found 2 results

  1. I send BOP there answer was need to send 2nd BOP to Brighton Hushing, is it two late to send the the second before i file motion to preclude. Ojection: A Bill of Particulars in not appropiate in an action allegin an "account stated" since the items upon which an acccount is based are deemen merged and there is nothing left to itemize. Objection: A Bill of Particulars is not appropiate tool for a count based on breach of contract. Objection: A Bill of Particulars is not the proper method by which a description of the account, including the items and details is to be obtained. -------------------------------------------------------------------------------------------------------------------------------------------------------------------- my trial in almos here. and still need to send them the motion to proclude, request for witness c96 and subpoena. they are collecting from chase, who sell to Global Acceptance Credit Company and then transfer to GCFS inc. they send me a copy of one year statements,Contract,Affidavit of Sale, Affidavit of Correctness. (not originals only copies) From Texas and Florida. and declaration of Custodian of records from 100 miles away from court, but GCFS inc has the main office in El Paso Robles, CA witch is more than 150 miles from court.is violating c98 I allready received from them c96 and need to send mine to,
  2. Please review and see if this motion to preclude needs work? COMES NOW the Defendant, Flyerfan, Pro Se, and requests this Honorable Court to enter an Order to preclude documents offered by the Plaintiff in relation to this matter before the Court and offers in support the following: I. Facts: 1. Defendant received from Plaintiff papers that included photocopies of documents the Plaintiff intends to attempt to use at trial including: i. Plaintiff’s Affidavit of Sale ii. Bill of Sale iii. Billing/ Credit Card Statements from OC iv. Plaintiff’s Affidavit of Ownership II. Law: The documents provided by the Plaintiff are inadmissible based on three areas of law: Hearsay, Relevance and Authenticity. 2. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted - DRE 801©. 3. Authenticity - A document may be deemed admissible under rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any law of the United States or of this State. 4. Relevance - Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. - DRE 403. III. Argument 5. The Affidavit of Sale is inadmissible hearsay as it does not fall under any exceptions to hearsay. The affiant did not make the statement in the affidavit. It was computer generated on form AOS 2011.8 and merely signed by the affiant. It is this statement, computer generated, which is offered by the Plaintiff in an attempt to prove the truth of the matter asserted, the definition of hearsay. While Plaintiff may attempt to get the affidavit admitted under DRE 803(6), the affidavit does not attempt to specifically authenticate any documents nor were any documents attached to the affidavit by the affiant. The affiant does not lay a proper foundation as to her qualifications as an “other qualified witness” as is required per DRE 803(6). She does not state competency to testify nor does she state if she even works for OC. She claims to be an attorney-in-fact but no documentation has been offered to confirm this even though it has been requested by the defendant through discovery. The Plaintiff objected to the defendant’s request for this documentation. This information and foundation are necessary to form a degree of trustworthiness. Without foundation and documentary evidence to support, the statements in the affidavit are conclusory. The affidavit is a mere recitation of the requirements of DRE 803(6) and does not reference, nor is it supported by, any admissible evidence. [1] 6. The “Bill of Sale” has no information specific to this case. Any information that may be case specific has been redacted by the Plaintiff which causes the document to be irrelevant. [2] Even if considered relevant, the document has no probative value and causes an unfair prejudice to the defendant as its relevance would have to be inferred. With no way of knowing if the redacted information is indeed relevant it causes confusion of the issues, therefore, making it inadmissible as evidence. The “Bill of Sale” refers to a “Credit Card Account Agreement Purchase to which this is an exhibit” yet no Credit Card Account Agreement Purchase is attached or submitted leaving this Court to assume the degree of accuracy and completeness of the accounts included in the sale. 7. The Billing/Credit Card Statements have been submitted by the Plaintiff to the defendant. They have not been referenced or specifically attached to any affidavit, therefore, making them unauthenticated and inadmissible as evidence. Without authentication these documents are inadmissible under the business records exception to hearsay rule 803(6). [3] 8. The Plaintiff’s Affidavit of Ownership is inadmissible hearsay as it does not fall under any exceptions to hearsay. The affiant did not make the statement in the affidavit. It was computer generated on form “AFFRECORD” and merely signed by the affiant. It is this statement, computer generated, which is offered by the Plaintiff in an attempt to prove the truth of the matter asserted, the definition of hearsay. While Plaintiff may attempt to get the affidavit admitted under DRE 803(6), the affidavit does not attempt to specifically authenticate any documents nor were any documents attached to the affidavit by the affiant as required by DRE 902(11). The affiant does not lay a proper foundation as to her qualifications as an “other qualified witness” as is required per DRE 803(6). She lays no foundation as to her qualifications as an “other qualified witness” even though it has been requested by the defendant through discovery. The Plaintiff objected to the defendant’s request for this information. This information and foundation are necessary to form a degree of trustworthiness. Without foundation and documentary evidence to support, the statements in the affidavit are conclusory. The affidavit is a mere recitation of the requirements of DRE 803(6) and does not reference, nor is it supported by, any admissible evidence. The generic “records” the affiant references were not generated in the normal course of business of JDB, which is all she would reasonably be able to affirm, even if she were qualified. [4] WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order granting the motion to preclude the aforementioned documents as irrelevant to these proceedings, unauthenticated, and inadmissible as hearsay evidence in favor of the defendant. [1] United States v. Ventresca, 380 US 102 - Supreme Court 1965 …A statement of "fact" is only as credible as its source…Investigator Mazaka evidently believes these statements to be correct; but the magistrate must, of course, know something of the basis of that belief…Is the belief of this affiant based on personal observation, or on hearsay, or on hearsay on hearsay? Nowhere in the affidavit is the source. [2] DELAWARE ACCEPTANCE CORP. v. Swain, Del: Court of Common Pleas 2012… Moreover, even assuming the Bill of Sale qualified under DRE 803(15), this document only provides that a pool of accounts was sold from Chase to GACC. The Bill of Sale alone does not come close to establishing the overall chain of assignment because it does not in any way state that it includes the account between Chase and Mr. Swain. (continued)