brjmhome6

Start To Finish Winning Against Midland Funding Aka Jdb!

229 posts in this topic

I think we could have a discussion without name calling.

I wasn't saying what you've done is in any way wrong,

but meant to point out that if they have failed to offer evidence and proof when they filed the complaint;

the fact the defendant doesn't request it in discovery doesn't shift the burden of proof onto the defendant.

Some states have evidentary rules regarding what has to be filed with the complaints on accounts and breach of contract, and if your state has those, use them as an affrimative defense.

There is usually also case law and always Restatement ( 2nd) of contracts regarding the level of proof required to collect an account/breach of contract.

Privity of contract case regarding Unifund that was recently posted is a prime example;

if they don't reply with the evidence that statutes require, your affirmative defense or objections stands, and you don't have to request it in discovery .

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brjmhome6, you've been a big help to me. I filed my answer and now I want to request Discovery for the Plaintiff. Problem is I don't know how to do it.

I'm assuming the discovery request must be filed with the court and then copies served on the plaintiff in the same way I did the answer. Is this correct?

It's almost been a week since I filed my answer so I'd like to go ahead and get this started. Do you have some examples I can follow? Thanks!

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After my pre-trial today, the plaintiff asked for 90 days/discovery when they realized I was not going to settle an unvalidated debt. How does this process work? Do I wait for their attorney to send the list of document requests/questions to me first or should I proceed ahead with mine to them? I'm representing myself and do not want to recieve a default judgement against me by helping the the JDB win all b/c I made a mis-step in the discovery process. Reading this thread has given me great hope that I can do this and win!! Thank you for sharing your experience with us and I look forward to any guidance that can be given to my questions!! :)

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After my pre-trial today, the plaintiff asked for 90 days/discovery when they realized I was not going to settle an unvalidated debt. How does this process work? Do I wait for their attorney to send the list of document requests/questions to me first or should I proceed ahead with mine to them? I'm representing myself and do not want to recieve a default judgement against me by helping the the JDB win all b/c I made a mis-step in the discovery process. Reading this thread has given me great hope that I can do this and win!! Thank you for sharing your experience with us and I look forward to any guidance that can be given to my questions!! :)

You should absolutely be sending them a request for production of documents! The attorney is just trying to buy time with the court right now in hopes that they'll get a default judgment out of you. The way they'll attempt this is by sending you a request for production of documents & things & a request for interrogatories & admissions which you must respond to in the same way that I did & you must respond within 30 days.

In the near future you'll be receiving these request from their attorney so you need to get your answer to the complaint filed with the court ASAP as well as a request for production of documents & things directed to plaintiff. You could send them a request for interrogatories & admissions but I don't believe it to be entirely necessary b/c your request for production of documents will be the show stopper....no contract, no judgment. No admission, no judgment. Now get on top of filing your answer & discovery request and make sure to send all correspondence to their attorney via certified mail with return signed receipt which is your proof that their office received whatever it is you're sending them. When they receive your request & answer, they'll know you mean business & will dismiss sooner rather than later. Good luck & keep us posted here!

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If you had filed a counterclaim in your answer, which is a claim against the JDB -- your case would not and could not have been dismissed.

JDB's case against you could have been dismissed.

ALWAYS FILE A COUNTERCLAIM IN YOUR ANSWER.8-)

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Have you seen this?

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.

Midland brought suit against Martinez to recover on a debt allegedly owed by Martinez. Midland alleged that it "and/or its Predecessor" extended credit to Martinez. Midland alleged that Martinez accepted the credit extended by making charges on the credit card account.

Midland attached an affidavit to its petition that contained an exhibit which Midland stated was "[a] brief summary of the account." Midland alleged that "[t]his account represents a summary total of a transaction or series of transactions of which a systematic record has been kept." The affidavit did not contain the printed name of the affiant, but appears to have been signed "E. Mart" (the "Mart Affidavit").

The attached exhibit contained what the Court described appears to be a computer-generated, single-page document that includes Martinez's name, address, an account number, and a balance of $ 2,076.74.

Midland further alleged that Martinez defaulted in making payments on the debt incurred, that it had demanded payment from Martinez, and that the balance, after all offsets, credits, and payments, was $2,076.74. Midland sought judgment in the amount of the debt, plus attorney's fees, pre-judgment interest, post-judgment interest, and costs of court.

The Rules of Civil Procedure require that "upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." See Tex. R. Civ. P. 166a(f).

The Rules of Evidence, however, provide the following hearsay exception:

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.

Tex. R. Evid. 803(6).

We have held that:

The predicate for admissibility under the business records exception is established if the party offering the evidence establishes that the records were generated pursuant to a course of regularly conducted business activity and that the records were created by or from information transmitted by a person with knowledge, at or near the time of the event.

Business records that have been created by one entity, but which have become another entity's primary record of the underlying transaction may be admissible pursuant to rule 803(6). Invoices received from outside vendors were admissible upon testimony by custodian of records as to the procedure by which the invoices became the company's business records). In addition, a document can comprise the records of another business if the second business determines the accuracy of the information generated by the first business. Id.;

Although rule 803(6) does not require the predicate witness to be the record's creator or have personal knowledge of the content of the record, the witness must have personal knowledge of the manner in which the records were prepared. In re K.C.P., 142 S.W.3d 574, 578 (Tex. App.--Texarkana 2004, no pet.).

Documents received from another entity are not admissible under rule 803(6), if the witness is not qualified to testify about the entity's record keeping. Custodian of records for travel agency was not qualified to testify as to records received from third-party company, showing credits to customers' credit card account).

In this case, the affiant does not provide any information that would indicate that he (or she) is qualified to testify as to the record- keeping practices of the "predecessor." The affiant does not identify the predecessor, nor does he provide any information concerning the acquisition of the attached record. The affiant does not indicate in any way that he has any knowledge of the predecessor's record-keeping policies or that the records are trustworthy. In fact, the affiant does not even provide his full name.

As such, the Mart Affidavit did not satisfy the requirements of rule 803(6), and the trial court erred by admitting it.

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You should absolutely be sending them a request for production of documents! The attorney is just trying to buy time with the court right now in hopes that they'll get a default judgment out of you. The way they'll attempt this is by sending you a request for production of documents & things & a request for interrogatories & admissions which you must respond to in the same way that I did & you must respond within 30 days.

In the near future you'll be receiving these request from their attorney so you need to get your answer to the complaint filed with the court ASAP as well as a request for production of documents & things directed to plaintiff. You could send them a request for interrogatories & admissions but I don't believe it to be entirely necessary b/c your request for production of documents will be the show stopper....no contract, no judgment. No admission, no judgment. Now get on top of filing your answer & discovery request and make sure to send all correspondence to their attorney via certified mail with return signed receipt which is your proof that their office received whatever it is you're sending them. When they receive your request & answer, they'll know you mean business & will dismiss sooner rather than later. Good luck & keep us posted here!

Thank you so much for your help and reply!! Just little background on the issue......The CA is Portfolio Recovery. Apparently, they have purchased a debt from Capt. one. I began the validation process with them in the summer and the only proof they sent me was an office generated form that listed nothing more than my address, an acct. number (which was not accurate) and some outrageous amount. When I disputed their so-called validation with a second letter, I never heard from them again until my summons. I responded to the summons, which by the way they had attached an office generated affividative that was signed by an employee of Portfolio Recovery. The pre-trial was set and I made sure to be there. It was apparent that the attorney was surprised I showed up (he was really late and called the courthouse to see if I was even there). The attorney attempted to settle with me but I refused to speak to him about an unvalidated debt. That is when the attorney asked the judge for more time to gather "evidence". I'm just so frustrated as I had hoped that the judge would have seen by my answer to the complaint and the copies of my validation requests would have stopped the nonsense there......but, I know that was foolish on my part to expect that. So, the next phase begins!! I used so much of the advice given here to help prepare for the pre-trial and the judge commented that the answers to the summons appeared to have been done by an attorney when I responded that I was representing myself.....so BRAVO to all the amazing people on here and yourself for sharing your experiences!! I just was so uncertain if I had to wait for their attorney to send their requests to me first before I could send mine?? I thought I may need to see what they are asking for before I pushed back?? I plan on requesting the person who signed the affividative to be a witness in hopes that they realize that I'm fighting back.....:twisted: Is it wise to ask for this witness?? I will keep you posted and again, THANK YOU!!

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If you had filed a counterclaim in your answer, which is a claim against the JDB -- your case would not and could not have been dismissed.

JDB's case against you could have been dismissed.

ALWAYS FILE A COUNTERCLAIM IN YOUR ANSWER.8-)

Hindsight is always 20/20 isn't it :)

I'd imagine you could counter with a FCRA violation. I'm fairly certain it's illegal for a JDB to knowingly report fraudulent information to the CRA's without sufficient evidence which proves the consumer owns the alleged debt....perhaps a counterclaim of defamation would be in order as well.

It was a pretty big mistake on my part by not including a counterclaim b/c the jdb can just dismiss w/o prejudice & refile again at a later time...however if you filed a counterclaim, the case moves forward whether the jdb likes it or not & you will get your day in court before a judge. That way you control the case, not the jdb....

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Thank you so much for your help and reply!! Just little background on the issue......The CA is Portfolio Recovery. Apparently, they have purchased a debt from Capt. one. I began the validation process with them in the summer and the only proof they sent me was an office generated form that listed nothing more than my address, an acct. number (which was not accurate) and some outrageous amount. When I disputed their so-called validation with a second letter, I never heard from them again until my summons. I responded to the summons, which by the way they had attached an office generated affividative that was signed by an employee of Portfolio Recovery. The pre-trial was set and I made sure to be there. It was apparent that the attorney was surprised I showed up (he was really late and called the courthouse to see if I was even there). The attorney attempted to settle with me but I refused to speak to him about an unvalidated debt. That is when the attorney asked the judge for more time to gather "evidence". I'm just so frustrated as I had hoped that the judge would have seen by my answer to the complaint and the copies of my validation requests would have stopped the nonsense there......but, I know that was foolish on my part to expect that. So, the next phase begins!! I used so much of the advice given here to help prepare for the pre-trial and the judge commented that the answers to the summons appeared to have been done by an attorney when I responded that I was representing myself.....so BRAVO to all the amazing people on here and yourself for sharing your experiences!! I just was so uncertain if I had to wait for their attorney to send their requests to me first before I could send mine?? I thought I may need to see what they are asking for before I pushed back?? I plan on requesting the person who signed the affividative to be a witness in hopes that they realize that I'm fighting back.....:twisted: Is it wise to ask for this witness?? I will keep you posted and again, THANK YOU!!

Don't worry about that affidavit...it's nothing more than a piece of hearsay. They can't prove their case based on nothing more than a sworn statement. They need proof which typically entails goodies like signed original contracts and so forth which they obviously don't have....pay no attention to their smoke & mirrors & file your request for production of documents & things just as I did in this post & get their lawyer scrambling to do some actual work. You don't need to wait for them to start sending you discovery requests to pursue your own. When I got my discovery request back from them in the mail, it was nothing but a sworn affidavit, transaction history on the alleged acct., & a statement with a dollar amount on it. They dismissed 2 days after responding to the discovery. Keep chuggin along & get that discovery request out in the mail!

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Thank you! I'm going to definitely look into countersuing as my rights have be trampled on by this JDB. I would have added that part as well but was unaware that I could as I was so focused on just responding and showing up. I will now never forget it...hee hee!! It would be not only great to get this dismissed but make them have to pay me:D

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I will start preparing the documents this week and will certainly be using your great posts as guidance!! I just have to keep reminding myself that I have nothing to be scared of....just keep breathing and moving forward!!;)

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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.xdancex

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.

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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(B)(1) or 200.1(B) 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:

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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.

(B) 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.

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That's some great stuff you have there redline!

I'm going to post some goodies over the next few days in the form of pre-formatted word documents for specific motions to make things easier on our fellow CIC surfers :)

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Don't worry about that affidavit...it's nothing more than a piece of hearsay.

In michigan if you dont file with your answer a sworn denial that affidavit becomes prima facie evidence that you owe the debt!

Regards Jimiii

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Don't worry about that affidavit...it's nothing more than a piece of hearsay.

In michigan if you dont file with your answer a sworn denial that affidavit becomes prima facie evidence that you owe the debt!

Regards Jimiii

I'm not familiar with Michigan civil procedure but I know here in Missouri, I covered all of the necessary responses in my answer. If in your answer, you deny all of the allegations of the complaint, do you still have to file a motion to strike the plaintiff's affidavit as hearsay?

For example, would my answer that I filed I Missouri have been sufficient if this case was in Michigan or would my failure to include a motion to strike the affidavit as hearsay have caused me to lose the case by default admission?

I guess I assumed if I denied all the allegations in the Plaintiff's complaint in my answer that it would cover the affidavit as well...

This is a very interesting topic that deserves some discussion.

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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.xdancex

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.

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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.xdancex

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.

Worry big time about this because it is the heart and soul of your case.

Contributions like this is why I love this forum!

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BRJMHOME6,

Thank you so much for all this invaluable information, I also live in the city of St Louis and just found out today that Midland is suing me. I have never been served any papers and had I not known how to look up lawsuits/court cases, I would not know that I am due in court in two weeks! That does not leave me much time to get my ducks in a row, and I will be diligently reading everything that you have posted in order to educate myself. If there is any specific info that you could provide or help you could give me, I would greatly appreciate it. I cannot send you a private message because I have not posted enough on here.

Thank you, I am scared that I will screw up the procedure in court, but I know that I can do it with all the help on this forum. Thank you again.

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BRJMHOME6,

Thank you so much for all this invaluable information, I also live in the city of St Louis and just found out today that Midland is suing me. I have never been served any papers and had I not known how to look up lawsuits/court cases, I would not know that I am due in court in two weeks! That does not leave me much time to get my ducks in a row, and I will be diligently reading everything that you have posted in order to educate myself. If there is any specific info that you could provide or help you could give me, I would greatly appreciate it. I cannot send you a private message because I have not posted enough on here.

Thank you, I am scared that I will screw up the procedure in court, but I know that I can do it with all the help on this forum. Thank you again.

Stay tuned, today I'll post my answer / motions in word doc format so it'll be much easier for folks on the board here to download them & just cut & paste your info in the necessary locations. Be back soon!

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Please don't forget that if you plan to ask for counterclaims, that should be stated in your answer as well. I unfortunately didn't pursue counterclaims so I don't have a ready made template but I'll look into it further & post an answer w/counterclaims template when I locate one worthwhile.

Also, it is just a template so you need to check all of the affirmative defenses available to you by checking out your states RCP & you make sure that you utilize each and every one that applies to your situation....SOL is a big one for many people out there which didn't apply to me.

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