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Ohio - Affidavit with MSJ


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First, this website is a great resource, I wish I had found it sooner. Thank you to all the contributors and admins (of course!)

In an active suit, the Plaintiff (I'm still not sure who the real Plaintiff is...they name a large bank, but all documents have the "This law firm is a debt collector attempting to collect a debt for our client and any information obtained will be used for that purpose") filed a Motion for Summary Judgment with a Memorandum In Support, an Affidavit (which I will post in part below), a stack of Statements and oddly enough a copy of my response to their Rogs, Admissions, and Discovery. They also included a pre-filled "Order Granting Plaintiff's Motion for Leave to File Motion for Summary Judgment Instanter"...it's just missing the Judge's signature...and a pre-filled "Entry" that basically grants the judgment in favor of the Plaintiff...it's just not signed by the Judge either. How nice of them thinking of the Judge and having everything all ready for him.

Anyways, I've read through quite a few posts and was wondering if this Affidavit could be struck on it's face. It does not state "personal knowledge", was signed prior to the filing of the case, and I have no idea who the Affiant is.

---------------------------------------------------------

AFFIDAVIT

The undersigned, being duly sworn, makes the following oath:

1. I am over 18 years old and competent to make this affidavit. I am an authorized agent of Plaintiff BIG BANK ("Big Bank") for purposes of this affidavit. I am duly authorized to make this affidavit, and because of the scope of my job responsibilities, I am familiar with the manner and method by which Big Bank maintains its normal business books and records, including computer records of defaulted accounts.

2. These books and records are made in the course of regularly conducted business activity

(1) at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and events, or

(2) by a computer or other similar digital means, which contemporaneously records an event as it occurs. The contents of this affidavit are believed to be true and correct based upon my personal knowledge of the processes by which Big Bank maintains its business books and records.

3. The books and records of Big Bank show that Defendant(s) opened an account with Big Bank for the purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the Customer Agreement governing use of that account. Further, Defendant(s) has/have breached the Agreement by failing to make periodic payments as required thereby.

4. The books and records of Big Bank show that Defendant(s) is/are currently indebted to Big Bank on account number XXXXXX1234 for the just and true sum of $2300.13 as of 11/12/2009, plus interest accruing from said date at an annual percentage rate in accordance with the Customer Agreement, currently 24.20%, and that all just and lawful offsets, payments, and credits have been allowed.

5. Post-judgment interest will continue to accrue on Defendant's(s') indebtedness at the rate authorized by law and as set forth in the judgment order.

6.1 declare under the penalty of perjury that the foregoing is true and correct and if called as a witness I would competently testify, under oath, thereto.

Given under my hand on:

Dated:

Shawn Wood Signature: (S WOOD)

County of Chesterfield, to wit: Commonwealth of Virginia

GIVEN under my hand and seal this 23rd day of Nov 2009

Notary Public

SUBSCRIBED and sworn to before me, the undersigned Notary Public in and for the

jurisdiction aforesaid, by Shawn Wood, who is personally known to me, and acknowledged

before me his/her signature to the foregoing ...

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Not sure if this matters, but the Affidavit was signed a week before the case was even filed. However, the Plaintiff's attorney did not provide the Affidavit in Discovery...just more Monthly Statements. I requested all documents that pertained to this case...I guess I have the Affidavit now :)

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I've got the exact same situation only my affidavit states "affiant's information pertaining to the account sued upon" and is dated more then 6 months before the lawsuit was filed. Didn't get it in discovery either.

Putting together my motion to strike the affidavit AND bill of sale. Seems kinda long to me but guess I'll just file it anyway and wing it.

Also trying to write my opposition to SJ. Need to have it all filed by Thursday so the push is on. The opposition to sj seems like nothing more then a repeat of the motion to strike. Both need points and authorities from what I understand.

I've tried to use pieces and parts of others but wish I could find one that was state specific.

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"affiant's information pertaining to the account sued upon" and is dated more then 6 months before the lawsuit was filed.

AS "personal knowledge " is required to beat the hearsay rule

HOW can the Affil have "personal knowledge" of an event SIX MONTHS INTO THE FUTURE ???? ;) Remember this is Sworn Testimony , based on "current personal knowledge"

Also IF this is not from the OC, it matters not because it doesn't attest to (under oath) of the accounting prior to this firm/co acquiring alleged account........etc

On the right track here Experts?

Edited by hopefulscambeater.
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What do I need (in Ohio) to combat the MSJ?

- Memorandum of Opposition to Plaintiff's Motion for Summary Judgment

- Sworn Denial (Or do I need to make an affidavit too?) Will a Graduated Denial work?

- Motion to Strike Affidavit of Shawn Wood

- Notice of Service

- Motion for Sanctions??

It's getting tight and I promise to help when I can. Thanks!

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Guest usctrojanalum

Wow guys, it does not matter that the affidavit was signed before the suit was filed. Take a few deep breaths and a couple of steps back and think critically for a second why that is the case. Trying to make something out of nothing.

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usctrojanalum, no problem, I am not focusing on the dates...it's just another issue and in the latest foreclosure scandal where the affiants had no personal knowledge of the account yet signed the affidavit anyways on a pre-dated form is causing some attorneys and debtors relief google "NY Times Flawed Paperwork Aggravates a Foreclosure Crisis" since I can't post links yet. The paperwork issue contains Affidavits and extends to credit cards as well as mortgages/foreclosures.

So we are preparing our Opposition to MSJs and have plainly requested assistance with that. I do not care about the dates other than as an item of contention of material fact. Hell, I think it's enough that the amount on the complaint is significantly different than the amount sworn to by the affiant.

I could use a little help to see if I am filing the right documents (not so much help with the documents themselves, but to ensure I file the correct ones).:-)

Edited by upgrade
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You'll need to file:

Motion to strike Affidavit and (whatever else you want striken)

-must b signed and certificate of service included. File this first because you want the Affidavit thrown out BEFORE the judge considers the motion for SJ.

Type up an Entry for the judge to sign if he grants your Motion

Then file your "Response and Objection to Plaintiff's Motion for Summary Judgement"

Add a Certificate of service to this as well.

I didn't submit a sworn denial. I've read too many different posts as to when to file but never anything about OH. I see it works in some states but not sure about OH.

My main objective right now is to throw out the affidavit which would give less weight to the motion for SJ.

As far as sanctions, I would research this before you file it. From what I understand sanctions can work both ways. Plus, check your court rules, there could be additional filing fees for that.

USC: I don't agree. The date DOES matter. The person that signed my affidavit stated personal knowledge of the account "sued" upon. Yet was signed and attested to more then 6 months before any suit was filed. Had they not used the "account sued upon" language then, NO, I don't think date would have been an issue. But you can't attest to something that hasn't happened.

It's not my only arguement regarding the affidavit but I included it anyway.

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Thanks for the info indigoesagain! That's pretty much what I was looking for.

As to the Sworn Denial, I'm in the same position...read some posts that it needs to be filed with the Answer, read some that it can still be filed after Plaintiff's MSJ with Affidavit. However, I would think I would have to file an Affidavit attesting that I had no knowledge of the debt, if it is found I had knowledge of the debt then the debt is not mine, if it is found the debt is mine, I dispute the amount stated in the Complaint.

This is what I am most unsure about.

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Just a thought guys & gals. Someone needs to check "Rules for Evidence" for Ohio. Make sure you are allowed to motion to strike for Hearsay. Some states, such as Missouri, follow the "Federal Rules of Evidence" and does not allow Hearsay as an objection to strike, so long as the Plaintiff is following "normal business procedures". As I understand it.

I believe you would have to attack the creditbility of affviant, to strike. Possibly a Motion to Appear.

If I am misunderstanding, please someone educate me.

*

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Thanks daybyday. Ohio does appear to have hearsay laws, those that need to reference the rules, google "Rules of Evidence" +Ohio. It appears Ohio fairly closely parallels the Federal Rules in that respect.

I did notice something in the Affidavit though:

2. These books and records are made in the course of regularly conducted business activity

(1) at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and events, or

(2) by a computer or other similar digital means, which contemporaneously records an event as it occurs. The contents of this affidavit are believed to be true and correct based upon my personal knowledge of the processes by which Big Bank maintains its business books and records.

He's saying the contents of the affidavit (his statements and conclusions) are correct, but not that he has personal knowledge of the alleged account. Any hints?

in (1) above, he states the books and records are made "by a person with personal knowledge of the acts or events" but leaves it open to who this person may be.

As an IT Director at a Fortune 500 company that is responsible for several automated financial platforms, I can say that it is very rare for an employee to have personal knowledge of the acts or events in the alleged account as it is 99.99% automated...it's not like CSRs are typing in credit card transactions...

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Wow guys, it does not matter that the affidavit was signed before the suit was filed. Take a few deep breaths and a couple of steps back and think critically for a second why that is the case. Trying to make something out of nothing.

Doesn't matter? HOW can they SWEAR to "personal knowledge" of something in the future? EVERYTHING "matters" ........IMHO

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good tips. This is what I've put together so far, it's just a draft of Motion to strike:

DEFENDANT’S MOTION TO STRIKE THE AFFIDAVIT OF SHAWN WOOD

Comes now, Defendant Mickey Mouse and respectfully states the following:

1. On or about October 12, 2010, Plaintiff submitted into evidence an Affidavit, hereto attached as Exhibit A, allegedly sworn to by the affiant, Shawn Wood, on November 30, 2009.

2. The affiant states he is an “authorized agent” of the Plaintiff. Neither the Court, nor the Defendant, can be certain of the affiant’s relationship or status as an employee of the Plaintiff. Merely stating that he is an authorized agent of the Plaintiff does not grant him the authority, knowledge, or the privileges of an employee of the Plaintiff. The affiant does not state that he is an employee of the Plaintiff, therefore his affidavit is hearsay. The affiant’s statement is irrelevant.

3. The affiant states he is “familiar with the manner and method by which Big Bank maintains its normal business books and records”. The affiant’s statement is hearsay. The affiant’s statement states familiarity with the manner and method the Plaintiff “maintains” its books and records, but does not state if the affiant has any familiarity or personal knowledge of the alleged account or the Defendant. Familiarity with methods is inadmissible as evidence of a debt. Manners and methods and records and books often and routinely are erroneous, prone to tampering, and other issues that if challenged may show an error in the Defendant’s favor. The method and manners must be disclosed to determine “that there is no genuine issue as to any material fact”, per Rule 56 ©. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

4. The affiant states “The contents of this affidavit are believed to be true and correct based upon [his] personal knowledge of the processes by which Big Bank maintains its business books and records.” The affiant’s statement is hearsay. The affiant does not state personal knowledge of the alleged account or Defendant, but of “processes”. affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt. Further, “the contents of this affidavit” are not specifically referenced. Merely attaching unreferenced, uncertified documents after an affidavit is not acceptable as evidence and the Defendant demands the Exhibits A “Account Statements” and Exhibit B “Customer Agreement” be stricken as evidence since they were attached to the affidavit in bad faith.

5. The affiant states “The books and records of Big Bank show that Defendant(s) opened an account with Big Bank…” The affiant’s statement is a conclusion. The affiant’s statement is hearsay based on a computer screen or printout. The Plaintiff has not submitted one document or piece of evidence that clearly and distinctly shows that the Defendant opened any account with Big Bank. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

6. The affiant references a “Customer Agreement” under which the Defendant allegedly opened an account. The “Customer Agreement” does not identify the Defendant in any way. The “Customer Agreement” is not valid evidence in this matter. The affiant’s statement is hearsay since he was not present at the time of alleged entry of the Defendant into the “Customer Agreement”. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

7. The affiant states “the Defendant(s) has/have [nice template] breached the Agreement by failing to make periodic payments as required thereby.” Again, the affiant’s statement is hearsay as he was not present at the time of alleged entry of the Defendant into the “Customer Agreement”. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

8. The affiant states an account number that appears to be redacted, ending with the digits “4222”. Since the account number does not identify an account, the affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

9. The affiant states the Defendant is indebted for the “just and true sum of $2614.98 as of 11/10/2009, plus interest accruing…” The sum of “$2614.98” is simply not stated in the complaint, does not appear in any account statement, it is obviously an error of the affiant. Not only is this an issue of material fact, but it shows the affiant is not competent to testify to the accuracy or correctness of any issue raised by the Plaintiff. Further, the affiant’s statement is hearsay and based on computer output. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

10. The affiant states, an annual percentage rate of interest (APR) of “24.15%”, allegedly “in accordance with the Customer Agreement…” However, the alleged Customer Agreement does not contain or list any annual percentage rate. Not only is the affiant’s statement hearsay, but again it is incompetent and erroneous. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

11. The affiant states “…that all just and lawful offsets, payments, and credits have been allowed.” The affiant has no way of knowing that his assertions or conclusions are true or not, fact or not. The affiant’s statement is hearsay. The affiant’s statement is irrelevant as evidence in proving that the Plaintiff owns the debt and that the Defendant allegedly owes any or all debt.

12. The affiant states “Post-judgment interest will continue to accrue on the Defendant’s(s’) indebtedness at the rate authorized by law and set forth in the judgment order.” The affiant’s conclusion is hearsay, attempts to predict the future, and again shows the affiant is incompetent.

13. The affiant declares “under penalty of perjury that the foregoing is true and correct”. The affiant’s “foregoing” statements obviously contain errors or false representations of the alleged debt, therefore he has already perjured himself and his perjured statements or affidavit cannot be admitted into evidence in this matter. Further, Rule 56(G) “Affidavits made in bad faith” states:

“Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.”

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  • 2 months later...

Just a thought...check your credit report. If the Big Bank's entry does not say sold/transferred then you are being sued by the Big Bank. Therefore the affidavit would more than likely be admissible and not considered hearsay.

The fact that the attorney's letters said "this is from a debt collector" simply means that the attorney collects debts and is a debt collector under the definition of the FDCPA so they must include that statement in their communications. It doesn't mean they can't represent an OC in a lawsuit.

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Doesn't matter? HOW can they SWEAR to "personal knowledge" of something in the future? EVERYTHING "matters" ........IMHO

The person was not swearing knowledge of something in the future. They were attesting to the fact that they work for the bank...have access to the records and to the current status of the account. The person said

"4. The books and records of Big Bank show that Defendant(s) is/are currently indebted to Big Bank on account number XXXXXX1234 for the just and true sum of $2300.13 as of 11/12/2009, plus interest accruing from said date at an annual percentage rate in accordance with the Customer Agreement, currently 24.20%, and that all just and lawful offsets, payments, and credits have been allowed."

The affidavit was dated Nov. 23 2009. (I hate that my comma doesn't work!)

It would be difficult to argue the affiant was testifying to future events.

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Guest usctrojanalum

If you owe me money, I could make an affidavit right now stating that you owe me money and then not sue you for a year. Would that make the affidavit any less true? Of course not.

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The affidavit was dated Nov. 23 2009. (I hate that my comma doesn't work!)

It would be difficult to argue the affiant was testifying to future events.

THIS(below) is where the "future" comes into play in many venues it's a requirement "that the affidavit is sworn at or Near the date of the occurrence(s) " as this was dated (about "matter sued upon" ) More than Six Months before it was sued upon, it IS in fact sworn to a matter that had not taken place...

"affiant's information pertaining to the account sued upon" and is dated more then 6 months before the lawsuit was filed.

I would argue the affiant could not possibly have knowledge of future events, and cast doubt on credibility in any other possible way , does it matter in every jurisdiction? I really don't know, however since the suit wasn't filed but was sworn to about a suit yet in the future, it "reeks of robo signing" IMO and with so many judges now aware of this in fact taking place it could well work to one's advantage...

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If you owe me money, I could make an affidavit right now stating that you owe me money and then not sue you for a year. Would that make the affidavit any less true? Of course not.

IF you Swear "on the matter sued upon" date it today and don't sue for over six months it's at the very least borderline perjury, you cannot swear something that is not true (or happened yet as if it has)........correct- of course it is ;)

I seriously doubt perjury would be charged but I can see clearly how a judge could easily not believe one word of the Affidavit

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