Motion to Strike Affidavit - Objection

[chippewa88]

I filed a Motion to Strike Affidavit in my case against Unifund CCR. Hearing is scheduled for 12-02-2009. Their attorney responded to my motion by filing an Objection. In his objection, he basically cited several cases explaining why the affidavit should be allowed and why my motion to strike should be denied. Do I need to follow up with a response to his objection?

[kadesdad07]

What was in the affidavit that you are trying to strike? In the motion what statements did you make in support of it? Did you also add case law to support your motion? They would object to it because if they don’t then you win. At this point the judge will review both motions and make his decision. Will depend if your motion was weak or not.

[unusualsuspect]

You have to file only after you subpoena the affiant to appear in court as a witness, after requesting the affiant's employment records and requesting their supervisor to appear.

You have to show that the affiant cannot know what happened with respect to an original creditor before moving to strike the affidavit.

[chippewa88]

The affidavit seemed very "simple". All it stated was:

I, Pxx Hxxxxx, being sworn state the following:

1. I am an authorized representative of the plaintiff in this case and am authorized to make the following statements and representations.

2. I make this affidavit on personal knowledge.

3. If sworn as a witness, I can testify completely to the facts stated here.

4. I have reviewed the file that is kept in the course of regularly conducted business activity. Based upon my review, I certify that the statements set forth in the Complaint are true and correct, except as to matters stated to be on information and belief I certify that I verily believe the same to be true. The total amount owed by Defendant to Plaintiff as of 07/13/2009 is $5503.54.

In my motion to strike, I stated the following:

1. Plaintiff has submitted into evidence an affidavit claiming that the affiant is an authorized representative of the plaintiff and has personal knowledge.

2. The affiant does not explain what file she reviewed and/or how it relates to alleged debt.

3. The affiant does not explain how the file came into her possession, only that she has reviewed the file and certifies that the statements set forth in the complaint are true and correct based on her review.

4. The affiant does not claim to have personal knowledge of how business records were kept with the original creditor.

5. The affiant does not claim to have personal knowledge of the sale or assignment of the alleged debt from the original creditor to the Plaintiff.

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

Didn't subpeona the affiant before filing motion

[admin]

The Plaintiff can file an objection - it doesn't mean that your motion will be denied. The judge can still agree with you.

I think your motion is solid.

[KentWA]

You did not say what grounds they objected. Most likely it was on the Business records exception. See if you can find the cases they cited. Most likely they relate to cases unrelated to a debt that was sold. You aslo need to request discovery on the records of the sale, and original records before sale.

There is plenty of case law related to how this is not a proper affidavid, however I have never had to strike one so I do not have any citation that would help.

[chippewa88]

I don't have the objection in front of me, but I believe it was on the business records exception. I'll have to do some research this weekend.

[unusualsuspect]

Unifund has submitted affidavits in the past that were found to be falsified... I think you need to use this to your advantage...

One prime case is

Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 Tex.App. LEXIS' 7096 (2nd Dist. Ft. Worth Aug. 31, 2007)

The text is way too long to print here, so I will give you the meat of it here...

Appellant objected to Kenney's affidavit on the basis of lack of personal knowledge and lack of trustworthiness. She specifically complains about Kenney's statement with regard to the applicable rate of interest on the account.

Affidavits in support of summary judgment must set forth such facts as would be admissible in evidence at trial. Tex.R. Civ. P . 166a(f); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.1997); Abe's Colony Club, Inc. v. C & W Underwriters, Inc., 852 S.W.2d 86, 88 (Tex.App.-Fort Worth 1993, writ denied). Affidavits are competent summary judgment evidence if they are made on personal knowledge and show affirmatively that the affiant is competent to testify to the matters stated therein. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Abe's Colony Club, Inc., 852 S.W.2d at 88. An affidavit that is conclusory is substantively defective. See Brown, 145 S.W.3d at 751. A conclusory statement is one that does not provide the underlying facts to support the conclusion. Trejo v. Laredo Nat'l Bank, 185 S.W.3d 43, 50 (Tex.App.-San Antonio 2005, no pet.); Brown, 145 S.W.3d at 751. When an affidavit in a summary judgment proceeding refers to other papers, sworn or certified copies of those papers must be attached to the affidavit. Tex.R. Civ. P. 166a(f); Brown, 145 S.W.3d at 752. An affidavit is substantively defective when the absence of the referenced papers from the summary judgment evidence leaves the affidavit conclusory. Brown, 145 S.W.3d at 752.

We review a trial court's decision to admit summary judgment evidence under an abuse of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998); Longoria, 938 S.W.2d at 30. The standards for the admissibility of evidence in a summary judgment proceeding are the same as those applicable to a regular trial. Longoria, 938 S.W.2d at 30. In an abuse of discretion review, we consider whether the trial court acted arbitrarily or unreasonably, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159 (1986).

The Kenney affidavit, as argued by Appellant, is substantively defective on its face. Kenney stated in her affidavit, dated August 8, 2005, that she was Appellee's Media Supervisor and authorized to make the statements and representations in the affidavit. The pertinent portion of her affidavit states:

There is due and payable from [Appellant, Account], the amount of $22,938.87 (principal balance in the amount of $14162.08 plus interest up through 08/08/2005 in the amount of $8776.79). By the terms of the agreement between [Appellant] and the original creditor, interest is accruing from the aforesaid date at the rate of 29.74 percent per annum. This balance reflects any payments, credits, or offsets made since the account was charged off. [Emphasis added.]

Kenney did not state the factual basis for these statements or attach to her affidavit a certified or sworn copy of the agreement between Appellant and the original creditor. We hold that Kenney's affidavit did not constitute proper summary judgment evidence because of these substantive defects and that the trial court abused its discretion by overruling Appellant's objection to it. See Tex.R. Civ. P. 166a(f); Trejo, 185 S.W.3d at 50; Brown, 145 S.W.3d at 751-52.

Oh BTW- Unifund is the Apellee.

Edited November 6, 2009 by unusualsuspect

[unusualsuspect]

Also you can attack the assignment of the debt to Unifund.

Nyankojo v. Northstar Capital...

Appeals Court (GA) ruled that in order for an assignment to collect a debt to be valid, there must be authenticated documentation to show the assignment. If there is none, then it is inadmissible in court as it is hearsay.

[kadesdad07]

I think your motion is fine. Now you just have to wait and see what the judge thinks. I also like the info unusualsuspect provided.

[Baggins]

With our MTS Midlands affidavit they didn't object to it, instead we're B-lining straight to trial next month. Could be their arrogance in thinking they have a rock solid case or could be a scare tactic, who nows. We'll be there with bells on though.

[chippewa88]

Got another letter in the mail from Unifund's attorney - a Pretrial Statement with the following:

1. Defendant used credit card for good and/or services. Defendant did not pay balance of credit card. Credit card account was acquired by Plaintiff. Therefore, Defendant owes this money to Plaintiff.

2. The issue in the instant case is an action for collection of a debt based upon alternative theories of breach of contract, an account and quantum merit and/or quasi contract. Plaintiff's complaint alleges that Defendant is indebted to Plaintiff.

3. Injuries / Damages:

Principal = $4918.44

Court Cost = $90.00

Interest = $652.29

Total = $5657.17

4. Plaintiff's pleadings rely on alternative theories of Breach of Contract, account due and owing, and quantum merit and/or quasi-contract.

5. State admissions of fact you are prepared to meet: That the Defendant owes $5657.17 to the Plaintiff

6. State admissions of fact you demand from opposite party: That the Defendant owes the Plaintiff $5657.17

7. Trial: Non-Jury 2 hours

8. Plaintiff offers to take $5000.00

It then lists 4 witnesses, one of which is the lady who signed the affidavit, plus myself.

Question:

1. Do I need to respond to this Pretrial Statement?

2. Should I cite the cases regarding the affidavit and assignment during the pretrail conference, or do I need to submit them in writing?

3. Should I file a Motion for Discovery before the pretrail conference? I want them to provide documentation that they acquired the debt, how much they paid for it, etc.

[unusualsuspect]

You have not done discovery yet??

Get cracking!! I'd supoena the lady who signed the affidavit's employment record. Subpoena the bill of sale and their accounting for the balance.

Submit the Luke v Unifund Partners case - Unifund's affidavits to obtain summary judgment were deemed flawed by the TX Appeals Court.

Also see Nyankojo v. North Star Capital Acquisitions -- an undocumented, unauthenticated assignment of an account is inadmissible in court as it is hearsay.

[chippewa88]

no, I didn't do discovery yet, but I'll get working on it right away.

[DFS]

In Colorado for simple civil cases (collections usually in that category) will not allow Discovery before Pre-trial conference. Then you have to request it, and it can only be requested during pre-trial conference.

However, you do have to submit to the opposing party any evidence you will be submitting at the trial and the opposing party does the same.