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Motion to strike affidavit as hearsay


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Nascar posted this great site containing white papers about affidavits: http://www.fljud13.org/pdfs/countyciv/AFF-OUTLINE-F01.pdf

It really helped me. If you use any of the information in the document don't forget to cite it.

Some of these objections to the affidavit may apply: Just suggestions

legally insufficient - affidavit fails to reflect facts demonstrating how the affiant would possess personal knowledge of the matters at issue in this case

it does not set forth a factual basis to support a claim of personal knowledge of the matter at issue and failed to make assertions based on personal knowledge.

Plaintiff has failed to lay the proper foundation for a business record’s admissibility, therefore, a witness may not testify as to the contents of the record and is therefore inadmissible.

it does not prove or establish chain of custody or title to the alleged account/debt and is inadmissible.

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Good link. I have a copy on my computer for future reference.

The op should first look in its Rules of Evidence for Hearsay Rule exceptions and find what that section says about record keeping. This is where you will find the requirements that the affidavit must meet.

Then, you would type up a motion similar to any other motion you would file and list your points of objection to the affidavit. In the heading you would write "Motion to Strike Affidavit". You would be concerning yourself with two basic types of objections:

(1) to the form of the affidavit - Is the witness competent, is the affidavit complete, is the record retention trustworthy?

(2) to the substance of the affidavit - does the affiant give a true and accurate account detail?

You cannot just say that the affidavit in not accurate, you will need to explain exactly what facts, or non facts, make the affidavit inaccurate.

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I am still so very confused!! I start to think I am on the right track, then I read that I can only use certain cases or statutes based on what state (az), what type of court (justice), and whether a case is applicable to debt validation vs motion to strike as hearsay. Is Coppola v. Arrow Financial Services a case I should state in my motion? Does it matter if the case was in AZ??

I've searched everywhere for a template to use as far as the common laws already looked up. I really don't understand how to look up or what to look up....am i looking for statutes, case law, or what? And then if I find something under district court, can it be used in justice court? Ughhh....

I know I am so close! Thank you everyone for all your help...please help me understand this too. Once I figure this all out I will post a template for Motion to Strike Affidavit as hearsay so no one else is this frustrated!

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Do a search in your state's Rules of Civil procedure for "motion to strike". What it says here is what you can do.

What do you want to strike? An affivadit by whom and what is the affiant testifying to?

Thank you Downto0 for trying to help The affidavit is from JDB and is the only evidence they are providing for their case. All it really says is that Midland bought the debt from BofA. There is no BofA account number, no signed record of any sort.

I have a mandatory mediation tomorrow at 11am, so I had to be sure to get papers filed today. I put together the best that I could do. Hopefully it is good enough. I will post below and maybe it will be of use to someone else. I'll also keep you posted on the outcome tomorrow.

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IN THE JUSTICE COURT OF Your DISTRICT

Your County, STATE OF ARIZONA

) Case Number: XXXXXXX )

DoucheBag JDB )

Plaintiff, ) MOTION TO STRIKE AFFIDAVIT IN SUPPORT OF ) PLAINTIFF'S CLAIM

vs )

)

Jane Doe )

Defendant, )

)

_______________________________________)

Comes now, Defendant Jane Doe and respectfully states the following:

1. Plaintiff has submitted into evidence an AFFIDAVIT IN SUPPORT OF PLAINTIFF'S CLAIM (hereinafter referred to as "Affidavit").

2. Plaintiff has no evidence to support that they are the owner of said debt. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

3. Said Affidavit pertains to acts and events that allegedly occurred between Defendant and a third party, Bank of America

3. At no time was the creator of the Affidavits , or any of Plaintiffs employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and Bank of America.

4. As such said Affidavit falls under the hearsay rule and is inadmissible as evidence.

5. Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events, and;

6. The information contained in the Affidavit is merely an accumulation of hearsay, and;

7. Upon information and belief, the creator of the document is not currently and has never been employed with Bank of America and therefore cannot have personal knowledge of how Bank of America records were prepared and maintained, and;

8. Is unqualified to testify as to the truth of the information contained in the Affidavit.

WHEREFORE, the Defendant prays this Honorable Court that Plaintiff’s Affidavit be stricken from evidence in the above action.

I state under penalty of perjury that the foregoing is true and correct.

Jane Doe.

By: _______________________________ Date:____

Jane Doe, Defendant

Address

Phone

I CERTIFY that I mailed / delivered a copy of this MOTION to:

DoucheBag Attorney

Address

Plaintiff's attorney at the above address or Defendant's attorney

By: _______________________________ Date:____

Jane Doe, Defendant

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In AZ we have to file a memorandum in support of motion. So, this is what I put:

IN THE JUSTICE COURT OF Your DISTRICT

Your County, STATE OF ARIZONA

) Case Number: XXXXXXXX )

DoucheBag JDB / Attorney )

Plaintiff, ) MEMORANDUM IN SUPPORT OF DEFENDANT’S ) MOTION TO STRIKE AFFIDAVIT IN SUPPORT OF ) PLAINTIFF'S CLAIM

vs )

)

Jane Doe )

Defendant, )

)

_______________________________________)

Comes now, Defendant Jane Doe and respectfully states the following:

Affiant’s Competency. An affidavit must clearly show the affiant is competent to testify to the matters stated in the affidavit. Fla. R. Civ. P. 1.510 Author’s Comment – 1967 [hereinafter “FRCP 1.510 Comment”]; Elser v. Law Offices of James M. Russ, P.A., 679 So. 2d 309 (Fla. 5th DCA 1996). An affiant fails to satisfy this competency requirement where affiant merely states, without more, that affiant has “personal knowledge.” Id.; see also Montejo Invests. N.V. v. Green Cos., Inc. of Fla., 471 So 2d 158 (Fla. 3d DCA 1985)(where affiant merely stated his title, that he was familiar with the facts stated in the complaint, and that to the best of his knowledge and belief the facts were true and accurate, affidavit was legally insufficient as it failed to show affirmatively that affiant was competent to testify to matters set forth therein, was not based on personal knowledge, and did not set forth facts as would be admissible in evidence); Iglesia v. City of Miami Beach, 487 So. 2d 1205 (Fla. 3d DCA 1986), rev. denied, 494 So. 2d 1151 (Fla. 1986)(“addition of the phrase that the affiant is ‘personally knowledgeable’ with respect to the allegations of the complaint adds nothing, since it is not a statement of fact, but is itself a mere conclusion or opinion of the affiant”). An affiant should establish the factual basis for affiant’s competence (i.e., age, bases of affiant’s personal knowledge of the relevant matters at issue in the case, etc.). M. Tanner & E. Gonzalez, Florida Civil Trial Preparation, Motion Practice (Fla. Bar 2002).

I state under penalty of perjury that the foregoing is true and correct.

Jane Doe

By: _______________________________ Date:____

Jane Doe, Defendant

Address

Phone

I CERTIFY that I mailed / delivered a copy of this MOTION to:

DoucheBag Attorney / Plaintiff

Address

Phone

Plaintiff's attorney at the above address

By: _______________________________ Date:____

Jane Doe, Defendant

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This FTC opinion letter might help:

The statute requires that the debt collector obtain verification of the debt and mail it to the consumer (emphasis mine). Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. Mere itemization of what the debt collector already has does not accomplish this purpose. As stated above, the statute requires the debt collector, not the creditor, to mail the verification to the consumer.

I will post the link next.

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Why are you using Florida case law when you are in Arizona? There should be plenty of AZ case law to support your position.

Well, that's exactly why I was so frustrated. Because I don't understand how to find the cases in my state. I go to the links provided here that take me to ASU's collaboration of cases and laws or directly to the court's system and it all looks German to me.

I get overwhelmed pretty easily when there is TOO much information. The case law (if that's what it's called) that I used in my memorandum is from FL because someone here was nice enough to provide a link to a document that spelled it all out clearly. To be honest, I didn't even realize it was all FL until it was pointed out...

Too late now, because I filed it yesterday. I'll let you know if it gets thrown out or not.

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  • 3 weeks later...

First of all let me say THANK YOU, THANK YOU, THANK YOU to everyone here that supported me and gave your suggestions. I could never have done this without your help!!!

Just wanted to update everyone. After filing all the proper papers I had to show up for the mandatory mediation. Well, the Mediator never showed up, but the Atty for the JDB was there. When he saw me check in he was quick to introduce himself and seemed very friendly. I sat next to him and was friendly right back. (catch more flies with honey).

We chatted for a couple seconds about weather, lunch, etc. then he casually asked me, "so, what did you say in your answer again?" and opened his file. He went through the response and defenses and complimented my work. He even asked 'where I got all this'. Having read a few posts here I remembered reading about someone that had been accused by an atty to have received legal advice while representing themselves...a no-no. So, I figured that was some way of feeling me out for anything he could bring up. My answer was honest...I did a lot of research, found some great websites and an awesome forum!!

At this point he tried to seem as off the cuff as possible and asked "so, what's the deal? Is this your debt or not?". Friendly and casual... But I had been trained well on how to answer that and said "Well, I don't know...I haven't seen anything to prove it." I also asked if he had seen all the filings I had put in the day before. He hadn't and asked what I'd done. Hmmm...Response to interogs, request for docs, motion to strike affadavit, and a couple others. Honestly enough, he explained the process from here out: we would agree to disagree and go to trial, I would ask for docs, they would look but probably wouldn't have any (he admitted Midland is the WORST), I would ask for dismissal w/prejudice, he would say w/o predudice, I would say no, he would say ok w/prejudice. All I said was, "yeah, I know. I've done a lot of research".

Since the Mediator still hadn't shown up the atty asked the clerk for our own papers to move forward. We agreed to go to trial, and he said I could go ahead and read the other choices if I wanted to...I did, and saw the one that said "move to dismiss" and joked with him saying "we could save us both some time and just check this box!" ;) He, laughed and said "Stop!"

We walked out together and went our separate ways. I didn't check my mail for a couple days but when I did I was surprised to find an envelope from the atty office. I opened it to find the Motion to Dismiss w/Prejudice!! It was sent the day after our meeting in court. Guess he either didn't want to drive all the way back out here, he knew there was little shot at winning, or he just liked me. :) Either way, I was happy.

I signed, made a copy, and sent the paperwork back to him within the 10 days. Mailed it registered return receipt just in case. I haven't heard anything back from the atty or the court yet. As a matter of fact I never heard anything back from the court on my motions I filed (affidavit to strike), but assume it's because the atty filed the Motion to Dismiss.

How long do I wait, or can I file the papers, since I made a copy? I THINK I won, but am always looking for anything I may have missed or done wrong. Any comments?

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Congratulations!!! If the attorney prepared and, signed a filed a motion to dismiss with prejudice then I am pretty sure it is over! Check the clerks website andsee if the document has been entered and the case marked closed!

Again, congratulations

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  • 2 months later...

Well, this case is still not dismissed! The plaintiff sent me the motion to dismiss with prejudice, which required my signature. I signed and I sent it back w/return receipt. They received and signed for it on March 19,2009. I waited and waited for the notice of dismissal, and checked w/the court several times before the scheduled court date for trial came. The morning of the trial I checked the court again and there was still nothing.

So, I called and spoke to the attorney office. The clerks there were more than RUDE, insisting that they had done what they were supposed to do and that was all they had to do. I knew we were supposed to appear in court in just a few hours, so I insisted to talk to the attorney personally & I finally got through to the attorney that I had met at the courthouse. He said he didn't even have the court date on his calendar because they filed the dismissal, but apparently "the court lost it".

The attorney said he would fax a motion to vacate to the court which would give 30 days to re-file the dismissal. I still went to the court anyway, just to make sure they didn't pull a fast one & I lose for not appearing, but they had received the motion to vacate & cleared it from the schedule.

A week later I received another Motion to Dismiss from the attorney requesting my signature. I probably made a mistake and did not send it back because I already had sent one and had proof that they had received it.

Today, I called the court and they still had not received any dismissal paperwork from the attorney. I also asked that the court review the case and contact the attorney. I called the attorney and this time he was rude as well. He interrupted me when I was telling him I had already sent a the paperwork in and it was signed for in his office..to say that they filed it and the court lost it, now I have to sign a new one as the court can not accept copies. He is sending that out again.

Ok, this is just really getting ridiculous! I do not believe that the court lost the paperwork. This is a small courthouse not overloaded with tons of people and cases. I feel like the attorney for Midland is just playing games to drag this out.

I did not file a counter suit when responding, but was wondering if I could or should now. They have ZERO paperwork on this debt, which they admitted. What are my options? What should I do?

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Ok, this is just really getting ridiculous! I do not believe that the court lost the paperwork. This is a small courthouse not overloaded with tons of people and cases. I feel like the attorney for Midland is just playing games to drag this out.

I did not file a counter suit when responding, but was wondering if I could or should now. They have ZERO paperwork on this debt, which they admitted. What are my options? What should I do?

"Never attribute to malice that which can explained by incompetence."

The incompetence is probably in the attorney's office, not the courthouse.

Just sign the dismissal again and send it back. You might make a photocopy for yourself, and if the attorney has already signed it, run it down to the courthouse yourself if the attorney takes too long again.

Good luck.

DH

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  • 2 weeks later...

Just sign the dismissal again and send it back. You might make a photocopy for yourself, and if the attorney has already signed it, run it down to the courthouse yourself if the attorney takes too long again.

I made a photocopy of the 1st dismissal the attorney sent and mailed my signed copy back via return receipt. Unfortunately, the attorney sends the paperwork to me unsigned by him, otherwise I would have already filed it myself.

I'll sign it again and send it back. But, I just thought I could file my own motion to dismiss and show the judge the paperwork the attorney has sent me as proof of his intent.

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  • 2 weeks later...

Just received the DISMISSAL WITHOUT PREJUDICE in the mail!! Yeehaw!! xdancex

Funny thing is, I hadn't even returned the new papers they were going to send out yet. It took them 2 wks to get the new paperwork out to me for signature, and I've been so busy with work I hadn't had time to get it back to them yet...guess they must have found the originals I signed. Either that or the court called the JDB atty and worked something out.

Not sure, but it is officially dismissed now!!

So, what do I need to do to get it off my CR? The debt is listed on CR by OC & JDB. How do I get both cleared off?

Thanks for all the help here...I could never have done it without all of you!!:)

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