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Zwicker & Associates, Affidavit of debt

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I have read many post's about what to do in response to an Affidavit of debt

I have A lawsuit against me from AMEX with Zwicker & Associates as their attorneys . They have filed A motion for SJ along with an Affidavit of debt (Filed on 11/06/09) I responded with A motion to subpoena the Affiant on 11/25/09 ( The Affiant is in NY). Zwicker has not yet answered the motion and I have not heard anything from the court. I have been to the court every week to check on any progress, but the file has not changed since 11/30/09.

I have been reading in other post that I should have also filed an Affidavit countering the Zwicker one otherwise I could face an SJ because they have more evidence than me. Should I file an Affidavit countering theirs or wait to see if I get A response back from them.

My plan was to wait for A response from Zwicker saying that the Affiant would not be able to appear ,and then file A motion to have the Affidavit of debt dismissed as Hearsay.

This is how things have gone to date.

Received Summons on 7/29/09. A copy of the card member agreement attached nothing with my signature on it

Sent DV letters to Zwicker on 8/11/09.

I have answered their summons Denying all counts and also filed affirmative defenses. on 8/13/09.

Sent 2nd DV Letter to Zwicker 9/16/09.

Zwicker filed Plaintiff's response to request for production on 10/29/09

Saying that they did not have to answer any counts. They did send copy statements.

Motion for SJ filed on 11/06/09

Affidavit of debt filed on 11/06/09

I filed A motion to Dismiss on 11/16/09

A Motion to subpoena the Affiant on 11/30/09

A Motion to strike the statements as evidence on 11/30/09

If none of this works I was going to file for Arbitration as A last resort.

Regards.

FR

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I have read many post's about what to do in response to an Affidavit of debt

I have A lawsuit against me from AMEX with Zwicker & Associates as their attorneys . They have filed A motion for SJ along with an Affidavit of debt (Filed on 11/06/09) I responded with A motion to subpoena the Affiant on 11/25/09 ( The Affiant is in NY). Zwicker has not yet answered the motion and I have not heard anything from the court. I have been to the court every week to check on any progress, but the file has not changed since 11/30/09.

1. You never had a pre-trial conference, check Fla. Small Claims rule of Civil Procedure and get aquanted it. It will tell you how that court is to be run. Pre-trail is use as in discovery to see what evidence each side has to 1. Reach a settlement 2. To sort of determine if the Court will waste its time or clear matters up before the trial.

2. File your own affidavit with proof if any against plaintiff don't wait have it on record that you may point to later.

I have been reading in other post that I should have also filed an Affidavit countering the Zwicker one otherwise I could face an SJ because they have more evidence than me. Should I file an Affidavit countering theirs or wait to see if I get A response back from them.

Examine the evidence they provide very carefully, and is this evidence authenticated do they have an affidavit referencing these statements.My plan was to wait for A response from Zwicker saying that the Affiant would not be able to appear ,and then file A motion to have the Affidavit of debt dismissed as Hearsay.

There has to be a trial date set in order to subpeona a withness and then they can only be within 100 to 150 miles from the court. You may request all info about the affiant in your discover to get more detail of employement, compentence in perssonal knowledge, that sort of thing.

This is how things have gone to date.

Received Summons on 7/29/09. A copy of the card member agreement attached nothing with my signature on it

I'd file a motion to strike card member agreement as hearsay and ilrelavent, no name or signature.

Sent DV letters to Zwicker on 8/11/09.

It may be helpful to attach it to your affidavit just to have it on record

I have answered their summons Denying all counts and also filed affirmative defenses. on 8/13/09.

Sent 2nd DV Letter to Zwicker 9/16/09. Again attach plaintiff may not ever answer but you have in the record your attempts.

Zwicker filed Plaintiff's response to request for production on 10/29/09

Saying that they did not have to answer any counts. They did send copy statements. In your summon was there a date and time to appear for a pre-trial hearing if not that would be an abuse of process and it sound like to me you where by-past that step. Check court clerk why there's no pre-trial hearing for your case?

Motion for SJ filed on 11/06/09

Affidavit of debt filed on 11/06/09

I filed A motion to Dismiss on 11/16/09

A Motion to subpoena the Affiant on 11/30/09

A Motion to strike the statements as evidence on 11/30/09

If none of this works I was going to file for Arbitration as A last resort.

Regards.

FR

I'm no lawyer, Only been in this fight just over a year but I have learned a lot won 1 case and praying to God I'd win the one I'm in presently. I didn't get pre-trial even thought they say I did. There's others on this site more experience than me so do a search to any question you have and find the answer to them, and by all means get educated to our laws in this area. S.A. Be Blessed!:)++

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Saint al.

Many thanks for your response. I am preparing an affidavit and will have it into the courts on Tuesday.

Hear are some answers to the questions you posted.

1. You never had a pre-trial conference, check Fla. Small Claims rule of Civil Procedure and get aquanted it. It will tell you how that court is to be run. Pre-trail is use as in discovery to see what evidence each side has to 1. Reach a settlement 2. To sort of determine if the Court will waste its time or clear matters up before the trial.

A) : No trial date has been set up. There has been No mention of A Pre Tial conference.

2. File your own affidavit with proof if any against plaintiff don't wait have it on record that you may point to later.

A) : I will have an Affidavit denying their Affidavit into the courts on Tuesday.

Examine the evidence they provide very carefully, and is this evidence authenticated do they have an affidavit referencing these statements.

A) : They have A card member agreement (copy) statements (Copy's) nothing with my signature on it. The Affiant states that they are the custodian of records of AMEX Bank and have personal knowledge of the account and that it was maintained under their supervision. (I checked out where the attorney was from and their address is just down the road from Zwicker's head office in MA.)

I'd file a motion to strike card member agreement as hearsay and ilrelavent, no name or signature.

A) : I will wait on this one I might want to use the Arbitration clause in it if necessary. (I will have this motion ready to send into the court)

2nd DV letter

It may be helpful to attach it to your affidavit just to have it on record

A) : The court has copies of the 1st and 2nd DV letters.They where sent in with my original answer to the complaint. Zwicker used them in their answer back to me denying that they had to answer any of the DV questions.

In your summon was there a date and time to appear for a pre-trial hearing if not that would be an abuse of process and it sound like to me you where by-past that step. Check court clerk why there's no pre-trial hearing for your case?

A) : There is no mention of A pre Trial hearing on any of the papers I have received from the court.

Again thanks for your input any additional info would be greatly appreciated.

Regards.

FR

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Hear is the Affidavit I want to send to the court on Tuesday

Any thoughts.

Regards.

FR

AFFIDAVIT

I, XXXXXXXX the undersigned denies that the affiant (Affiants name) has any personal knowledge of the alleged debt,and that alleged accont has been maintained under their,(Affiants name) personal supervision.

I. XXXXXXXX, have never heard of (Affiants name) and have never been in contact with (Affiants name) on any matter whatsoever.

I, XXXXXXXX, respectfully ask how (Affiants name) came to be the custodian of records and have personal knowledge of the alleged account (1) Without first notifying me personally that (Affiants name) was to be the custodian of records from the start date of alleged account (2) If (Affiants name) is the custodian of records and has personal knowledge of the alleged account,can he/she please list all transactions that (Affiants name) personally supervised?

This Affidavit executed this 19th day of January, 2010.

______________________________

XXXXXXX

My Address hear

The foregoing Affidavit sworn and subscribed before me this 19th day of January, 2010.

________________________________

Notary Public

My commission expires:

Edited by Fedral Reserve

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In an affidavit you make statements of fact based on personal knowledge, not requests.

How can you deny that the affiant has personal knowledge? Are you the affiant?

In order for the affiant to gain personal knowledge all he or she needed to do was review the file at the creditor's office. Start researching business records under the Florida Evidence Code (found in the Florida Statutes).

If I recall, the amount in controversy in your case is more than $5,000. If that is the case, then the Small Claims Rules do not apply. You are to use the Florida Rules of Civil Procedure.

Additionally, isn't this a corporate account? What discovery have you sent?

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Thanks FlaLawyer for your reply.

In an affidavit you make statements of fact based on personal knowledge, not requests.

Answer : I will restructure the Affidavit as suggested.

How can you deny that the affiant has personal knowledge? Are you the affiant?

Answer : I was just trying to counter what they where saying.

In order for the affiant to gain personal knowledge all he or she needed to do was review the file at the creditor's office. Start researching business records under the Florida Evidence Code (found in the Florida Statutes).

Answer : Will do

If I recall, the amount in controversy in your case is more than $5,000. If that is the case, then the Small Claims Rules do not apply. You are to use the Florida Rules of Civil Procedure.

Answer : Will Do. It is more than $5,000.00

Additionally, isn't this a corporate account? What discovery have you sent?

Answer : This one is A personal Account.

Sorry to act like such A Dumb a$$, but this is all very confusing.

regards.

FR

__________________

DISCLAIMER - This answer is not legal advice. No attorney-client relationship is formed. The information provided is for educational purposes only. For specific advice regarding your situation, please consult a qualified attorney in your jurisdiction.

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Does this sound any better.

Any thoughts.

Regards.

FR

AFFIDAVIT

I, XXXXXXXX the undersigned Has no personal knowledge of Affiant ( Affiants name)

I. XXXXXXXX, have never heard of (Affiants name) and have never been in contact with (Affiants name) on any matter whatsoever.

I, XXXXXXXX, Have No personal Knowledge of Affiant (Affiants Name) Being the custodian of records for the alleged account

I XXXXXXXX have never been contacted by (Affiants Name) requesting to be The Custodian of records for the alleged account

This Affidavit executed this 19th day of January, 2010.

______________________________

XXXXXXX

My Address hear

The foregoing Affidavit sworn and subscribed before me this 19th day of January, 2010.

________________________________

Notary Public

My commission expires:

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I don't understand the purpose of an affidavit from you claiming that you do not know the affiant. This would do nothing to prove that the affiant does not have personal knowledge of the debt.

What you would want to do is subpoena the affiant's credentials to ascertain if they are qualified.

In order for the affiant to gain personal knowledge all he or she needed to do was review the file at the creditor's office.

This isn't automatic. First, the affiant, as I suggested earlier, must be qualified. Secondly, the file the affiant reviewed must also be qualified.

In most cases, the creditor does not give complete access to the affiant so that the affiant could made a true informed decision as to how the debt was created, maintained, and came to the amount which is demanded at the time the affiant reads the creditor's file.

Admin has a pretty good article about affidavits. I'll see if I can find it.

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Downto0.

Thanks for the reply I have already filed A motion to subpoena the Affiant. It was filed 11/30/09. I have not had any response from either the court or the Plaintiffs attorneys Zwicker to date.

There are many post on this site saying that it is best to file an Affidavit with the court if the Plaintiffs attorneys file an affidavit of debt.

The reason stated is that the Plaintiffs have more evidence than the defendant and so the judge can grant A SJ against me.

What I am trying to do is construct an affidavit to file with the courts on Tuesday to balance out the Evidence issue.

regards.

FR

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Here is admin's article:

http://www.creditinfocenter.com/legal/motion-to-strike-affidavit.shtml

There are many post on this site saying that it is best to file an Affidavit with the court if the Plaintiffs attorneys file an affidavit of debt.

What kind of affidavit did they say to file? Probably the best affidavit to file is a sworn denial. Here you deny the whole debt and all its attachments, one being the affidavit.

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Thanks for the links Downto0.

I will take A look at them. Just one question?.

Will the Plaintiffs Attorneys have to answer my motion to subpoena the Affiant before the judge can grant A SJ.

This is what is really bothering me. I am checking with the court clerk every week for any updates but as of yet there has been no action.

I was waiting for an answer from the plaintiffs objecting to the motion so that I could file A motion to Strike the Affidavit as Hearsay.

Regards.

FR

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Will the Plaintiffs Attorneys have to answer my motion to subpoena the Affiant before the judge can grant A SJ.

I don't know what your motion to subpoena the affiant actually is because you usually just go over to the clerk's office and pick up a blank subpoena with the clerk's signature on it, fill it out, and have the receiving party served.

My understanding of a SJ is that there are no material facts that need to be debated. It is clear that one litigant or the the other has proven its case and deserves judgment.

It would seem that if the credentials of the affiant are being questioned by you, that the judge would order the resume of the affiant to see if they are qualified.

But, if the judge thinks the debt is yours, regardless to whatever the affiant said, the judge may grant the SJ. You should have your objection to this ruling documented by objecting in court where your words are recorded and appeal on these grounds.

If you haven't filed your MTS, I would do it promptly so it will be in the case file for the judge to read.

If you are denying the debt, I would also file a sworn denial.

FYI...any of the legal clerks in your county court house probably won't be able to notorize these documents. You probably can, however, go to another office in the same court house for a notary who will be able to sign.

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