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SpudGirl

Motion to Strike - Case law needed!!

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I know I have seen tons of case law excerpts, but I've been searching for 2 hours now and I can't seem to find what I need!

C1 atty attached exhibits to original complaint and to the answer to my discovery. They were un-authenticated - one exhibit contained a couple of statements showing I was behind on payments - the other was a generic 2010 agreement (account was written off in 2010).

My hearing is at the end of the month. I plan to file motions to strike both documents a day or two before the hearing.

This is what I have so far:

To Strike Plaintiff’s Exhibit B (Copy of “The Customer Agreement”) because the Customer Agreement submitted by the Plaintiff is a generic form with a Copyright date from the year 2010 (see attached) which has no bearing on this action. Plaintiff’s Exhibit A shows account dates from the year 2010 with no activity other than fees because the account was already in default. The fact that the Plaintiff issued a particular agreement with particular terms is of little relevance in determining the actual terms of the alleged agreement before this Court. At bar, the Plaintiff has failed to provide proof that the Defendant agreed to such conditions and that these terms and conditions were in effect at the time the alleged account was opened.

Motion to Strike Exhibit A – cardholder statements

The Defendant asserts that the articles in Exhibit A have not been authenticated and as such are hearsay and should not be admitted as evidence. The Plaintiff has not laid a legally sufficient foundation for the documents provided to be admitted as evidence.

I would love to back up these motions with case law. Any opinions out there?

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You don't need case law. A document can't speak for itself. It's hearsay without a live witness with personal first hand knowledge about the document.

Unless it is a motion for summary judgment hearing I would do nothing. Wait until the trial and then object. It is the simple hearsay objection. There is no fancy caselaw.

Since it is an OC they can use business records exemption. However, they still must have a witness at trial. The document can't speak. You can't cross examine a document.

It's as simple as saying, objection, hearsay when they try to introduce the affidavit. If this is summary judgment then make sure you file your motions to strike in time and per the rules of procedure.

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I know I have seen tons of case law excerpts, but I've been searching for 2 hours now and I can't seem to find what I need!

C1 atty attached exhibits to original complaint and to the answer to my discovery. They were un-authenticated - one exhibit contained a couple of statements showing I was behind on payments - the other was a generic 2010 agreement (account was written off in 2010).

My hearing is at the end of the month. I plan to file motions to strike both documents a day or two before the hearing.

This is what I have so far:

To Strike Plaintiff’s Exhibit B (Copy of “The Customer Agreement”) because the Customer Agreement submitted by the Plaintiff is a generic form with a Copyright date from the year 2010 (see attached) which has no bearing on this action. Plaintiff’s Exhibit A shows account dates from the year 2010 with no activity other than fees because the account was already in default. The fact that the Plaintiff issued a particular agreement with particular terms is of little relevance in determining the actual terms of the alleged agreement before this Court. At bar, the Plaintiff has failed to provide proof that the Defendant agreed to such conditions and that these terms and conditions were in effect at the time the alleged account was opened.

Motion to Strike Exhibit A – cardholder statements

The Defendant asserts that the articles in Exhibit A have not been authenticated and as such are hearsay and should not be admitted as evidence. The Plaintiff has not laid a legally sufficient foundation for the documents provided to be admitted as evidence.

I would love to back up these motions with case law. Any opinions out there?

C1 - Capital One? Did they include an affidavit with anything?

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If it is Capital One, you might want to look into filing a motion to compel arbitration and move to get it out of court. Depending on the amount they are trying to collect, they will often walk away as they don't want to pay JAMS fees to pursue the collection. :)++

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If it is Capital One, you might want to look into filing a motion to compel arbitration and move to get it out of court. Depending on the amount they are trying to collect, they will often walk away as they don't want to pay JAMS fees to pursue the collection. :)++

Striking an OC's documents can be more difficult. Linda has an understanding of arbitration. It's definitely something to look into.

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If it is Capital One, you might want to look into filing a motion to compel arbitration and move to get it out of court. Depending on the amount they are trying to collect, they will often walk away as they don't want to pay JAMS fees to pursue the collection. :)++

Wow - from everything I've read so far, I thought I was supposed to avoid arbitration at all costs. It is Cap One and the atty suing me might actually be their atty. There is a larger law firm that "farms out" registered representatives in different states to legally collect. In their answer to my discovery, they claimed to have Cap One as their "direct client".

Okay Linda, you have more experience than I do for sure. The last statement from C1 was around $1500 or so and the atty now wants about $2500. Still worth arbitration risk?

I'll start reading the posts about arbitration, but I would appreciate any extra advice/rationale you can give me regarding this. Also, when should I try to compel arbitration - before the initial hearing or after? (They called this hearing a "pre-trial conference."

Edited by SpudGirl

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BV80,

There was no affidavit - I was kind of surprised about that. I don't know if this matters as far as any proof or affidavit is concerned, but in their answer to my discovery they stated they would call as a witness 4 different people from Cap One's legal response team. I googled all the names. Only one came up with a result and he is the VP of legal asset recovery services. He lives in VA - highly doubt a VP would come to my state for a piddly amount of money. Maybe they'll get a sworn statement from him? They also want to call me as a witness. Scare tactic?

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Linda, one more thing....

I've been reading the arbitration board. The card I had with Cap One was a business card. According to some posts, that changes the game but I am not sure how. Any opinion?

Also, the card agreement attached to my suit was from 2010. As I mentioned in my previous post on this thread, the account was technically defaulted in 2010, but "restricted" in 2009, i.e., no new transactions were to be posted to the account. It was opened in 2006. So, again, should I try to strike the 2010 agreement and make them provide an earlier agreement that would have the arbitration clause in it?

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When you say "business" card, was it only for business or did you "ever" use it for any consumer type purchases?

Edited by Linda7

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BV80,

There was no affidavit - I was kind of surprised about that. I don't know if this matters as far as any proof or affidavit is concerned, but in their answer to my discovery they stated they would call as a witness 4 different people from Cap One's legal response team. I googled all the names. Only one came up with a result and he is the VP of legal asset recovery services. He lives in VA - highly doubt a VP would come to my state for a piddly amount of money. Maybe they'll get a sworn statement from him? They also want to call me as a witness. Scare tactic?

The witness wouldn't necessarily have to appear in person. Thanks to technology, if the court rules and the judge allow, they could testify by some other means.

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When you say "business" card, was it only for business or did you "ever" use it for any consumer type purchases?

Strictly business. Never used for personal purchases. Does that make a difference?

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BV,

I'm feeling a little discouraged. This atty seems to have everything in alignment. The only thing I am questioning so far is that in my discovery request, he objected to showing copies of all statements on the account. It makes me wonder if he doesn't have access to it or if he just doesn't want to do it unless forced to. Any suggestions?

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BV,

I'm feeling a little discouraged. This atty seems to have everything in alignment. The only thing I am questioning so far is that in my discovery request, he objected to showing copies of all statements on the account. It makes me wonder if he doesn't have access to it or if he just doesn't want to do it unless forced to. Any suggestions?

You could try a motion to compel, but you'd need some good case law. What was the cause of action? Breach of contract? Account stated? Suit on Account?

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You could try a motion to compel, but you'd need some good case law. What was the cause of action? Breach of contract? Account stated? Suit on Account?

The original complaint said "Defendants have defaulted on the obligation under the contract" - reference to a business credit card that I was apparently tied to personally.

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If it were me, I'd file a motion to compel "private" arbitration. The difference with it being "solely" business is your cost.

A little food for thought though, even though you say it is a business card - if you are denying the debt, why couldn't you treat this like a consumer and file as a consumer in JAMS?

I'll send you a pm in a minute. :)++

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Strictly business. Never used for personal purchases. Does that make a difference?

JAMS will likely treat it like a business to business arbitration. Be careful, this means you have to split the cost 50/50. Even if they accept as consumer to begin, Cap1 can easily argue it is not and force a split of cost.

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JAMS will likely treat it like a business to business arbitration. Be careful, this means you have to split the cost 50/50. Even if they accept as consumer to begin, Cap1 can easily argue it is not and force a split of cost.

This is true, but too with us not knowing all the specifics -

"The consumer vs. commercial distinction is determined by actual use, not the type of card it is. A business card could be consumer if consumer goods were charged on it. A personal card could be business if business items were charged on it."

I also have seen this from another member at debtorboards - "Since you did not sign a contract, you might be able to make the case that you are not personally liable for the business debt."

I sent her a link to debtorboards and in my opinion - it never hurts to get all the advice you can and then sift through what you find out before you make your own decision.

What I fear is that the debt is "not" that old. The records should all be available for Cap. One. As BV80 pointed out, it won't be hard for them to have witnesses and possibly be heard telephonically.

On a good note, since the amount of the debt is not that much, I still feel arbitration will get you a better foot hold toward a better settlement or even a walk away.

There are so many scenarios and as I pointed out in my pm to you - we don't know all your circumstances in regard to the card or your business relationship or who else might have been also liable for the business debt, if any. And I don't know the actual terms on your agreement. Anybody having an agreement with an arbitration provision can elect and initiate arbitration. If you did decide to choose to file as a consumer and initiate with JAMS and Capital One wanted to argue that it is business and not consumer, at what point would it be redirected to business?

Would it be, that possibly JAMS would accept your consumer complaint and that would leave Capital One to pay all the other costs except the $250. Or would they decide that it is not worth it to pay what they would have to pay to argue that it is indeed (and prove) that it was a business card?

Or even if you split the cost up front to initiate as in a business - would Capital One even follow that in regard to the other expenses as they pile up for them to collect a debt this small? Who knows?

As I said, I'd also post at the other forum and get "all" thoughts. :)++

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