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Received notice of intent to use 902 (11) evidence at trial. The mandatory notice included OC business records affidavit and "37" documents. The documents appear to be billing statements covering a 12 month period, including alleged last statement. The statements are certified to be true and accurate. The thing is...every monthly statement is obviously altered or edited. The actual text covers approximately 1/3 of the page. The font is super small (not quite fine) making it hard to evaluate. Each monthly cycle includes two pages 1 of 2 & 2 of 2, reflecting charges/credits, balance, due date and so on. However the "last" billing cycle is still just two pages although page # footer indicates there should be 5. OC sent 1 of 5 and 2 of 5 for the cycle plaintiff is relying on for an account stated cause of action. Do I have a valid trustworthiness argument? Please take look at OC affidavit. Affiant references 37 documents without identifying them. Affiant fills in blanks in notary statement at the bottom. I do not see a sworn statement under penalty of perjury that is required, maybe it is implied by notary. I have no clue what that jargon truly means. The affiant claims to be litigation support employed by an AFFILIATE of cap1, not sure if it makes a difference? Thank in advance. Less than 4 weeks before I trial, I would love to have this 902 (11) evidence go away via motion in limine.
In response to my Motion to Strike Plaintiff's Affidavit(which is the standard PRA affidavit), PRA is claiming the affidavit is admissible as evidence under AR rule of evidence 803(6) or (7). "Plaintiff has properly incorporated its predecessor in interest business records into its own business records. There is no prohibition against this practice. See Marshall Trucking Co. v. State, 23 Ark. App. 110 (1988)". Do I need to file a response to this, and if so, what argument do I use? I know this is not correct, and that you can't just use someone else's business records as your own, but I don't know how to present this. Cates v. State, 589 SW 2d 598 - Ark: Court of Appeals 1979 may also be of interest - it provides criteria for admission of business records. -josh Body of my Motion to Strike follows: 1. Plaintiff has submitted into evidence an affidavit claiming that the affiant has personal knowledge of business records related to the aforementioned alleged debt referred to herein as PLAINTIFF’S AFFIDAVIT. 2. The affiant writing the PLAINTIFF’S AFFIDAVIT does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, creditor name. 3. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of how business records were kept at the original creditor. 4. Affiant of PLAINTIFF’S AFFIDAVIT does not claim to have personal knowledge of the sale or assignment of the alleged debt from the original creditor to PORTFOLIO RECOVERY ASSOCIATES, LLC. WHEREFORE, the Defendant prays the Court that Plaintiff's Affidavit be stricken from the Complaint filed herein, in which it is incorporated by reference. Respectfully submitted,