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JDB requesting my motion to strike affidavit be denied


brttwill
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Here is the motion to strike that i sent , and yes I probably screwed something up.....

MOTION TO STRIKE AFFIDAVIT IN SUPPORT OF PLAINTIFF'S CLAIM

Comes now, Defendant XXXXX 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, Capital One.

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 Capital One.

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 Capital One and therefore cannot have personal knowledge of how Capital One 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.

AND HERE IS WHAT THEY SENT TO DENY.......

COMES now Plaintiff yada yada yada response to motion to strike Affidavit:

1. Plaintiff denies all allegations in defendant's motion not expressly admitted herein.

2. Plaintiff filed a complaint on an account and attached a copy of an affidavit of account pursuant to ARK. code Ann. 16-45-104. Defendant has not made any arguments that the affidavit is improper under this statute, and thus has failed to make an argument to strike the affidavit.

3. Plaintiff stated sufficient facts in its Complaint to meet the requirements of fact pleading under Arkansas Rules of Civil Procedure 8(a), wherein Plaintiff alleges that the Defendant owes a debt to Plaintiff.

4. Plaintiff stated a claim upon which relief should be granted, in that a Complaint for a debt is owed is a valid cause of action under Arkansas law. See Arkansas Rules of Civil procedure 12(B)(6)

5. IN contrast, Defendant has failed to provide any facts at all to prove any allegations contained within her motion, only baseless and misguided legal conclusions.

6. Plaintiff does indeed have standing to bring this cause of action. According to Ark. Code Ann 16-45-104, "In any suit on an account...the affidavit of the Plaintiff that the account is just and correct shall be sufficient to establish the account.." Under Arkansas statue, the affidavit of account attached to Plaintiff's Complaint is sufficient evidence of the debt.

7. Furthermore, a verified account is prima facie correct. Chicago Crayon Co. v. Choate, 102 ark. 603, 145 S.W. 197 ( 1912), Ike Stiel & Co. v. Geo. P. Ide & Co., 116 Ark. 244, 172 S.W. 871 ( 1915)

8. Defendant does not make a single sensible or supportable argument in her motion. Plaintiff should be awarded reasonable attorney's fees for the necessity of preparing a response to such a frivolous pleading.

WHEREFORE Plaintiff prays for denial yada yada yada

HERE IS THE AFFIDAVIT THEY ATTACHED TO ORIGINAL SUMMONS...

BTW JULI O'BRIAN has never been employed with OC or JDB as verified on LinkedIn....

PLAINTIFF'S AFFIDAVIT OF INDEBTEDNESS AND OWNERSHIP OF ACCOUNT

Now comes the undersigned affiant yada yada yada

1. I am an Authorized representative for LVNV Funding LLC. I am authorized to make this affidavit on its behalf, and the information below os true and correct to the best of my knowledge on the Plaintiff's records.

2. I have personal knowledge regarding Plaintiff's creation and maintenance of it's normal business books and records, including computer records of its accounts receivables. This information was regularly and contemporaneously maintained during the course of the Plaintiff's business.

3. In the ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts, service accounts and/or other credit lines. The records provided to Plaintiff have been represented to include provided information by the original creditor or its successors in interest. Such information includes the debtor's name, social, account balance, the identity of the original creditor and account number.

4. To the best of my knowledge and belief, the Defendant is not a minor or mentally incompetent person.

5. based upon the business records maintained on account XXXXXXXX0000 which are a compilation of the information provided upon acquisition, the account is the result of the extension of credit to XXX XXX by capital One on or about 03/20/2004 ( date of origination). said business records further indicate that account was then owned by Capital One, THAT CAPITAL ONE LATER SOLD / ASSIGNED PORTFOLIO to Plaintiffs assignor which included the defendants account on 06/09/2009 ( date of assignment ) , all the ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of $2,707.30 plus any additional accrued interest.

signed Juli O'brien

OK so tell me how screwed I am :shock:

AGAIN Thanks for your help

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Hold on..even if the affidavit stands the JDB still has to prove that every transaction on that account from its inception is legal. The JDB cannot authenticate the transaction record and be a witness to the records that the OC kept. SO, put the affiant on the stand if it goes to trial and make that person look like an idiot.

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A witness cannot testify that a file or business record shows that the defendant is in default. Such testimony is both hearsay (it is an out of court assertion by whoever prepared the records) and violates the best evidence (original document)rule (since it is an attempt to prove the contents of a document without introducing it). Wahad v. Federal Bureau of Investigation

Nor can such testimony or affidavits be made sufficient by omitting the

fact that it is based on a review of loan records, if it appears that the witness or affiant did not personally observe the underlying transactions. Hawaii

Community Federal Credit Union v. Keka, 94 Haw. 213, 11 P.3d 1, 10 (2000).

Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 129, 595 N.E.2d 177, 181-82

(2nd Dist. 1992) (where bank officer's "affidavit essentially consisted of a

summary of unnamed records at the bank," unaccompanied by records themselves

and unsupported by facts establishing basis of officer's knowledge, foundation

was lacking for admission of officer's opinion regarding amount due on loan).

Manufacturers & Traders Trust Co. v. Medina, 01 C 768, 2001 WL 1558278,

2001 U.S. Dist. LEXIS 20409 (N.D.Ill., Dec. 5, 2001) (affidavits by attorneys and others lacking personal knowledge insufficient).

Topps v. Unicorn Ins. Co., 271 Ill. App. 3d 111, 116, 648 N.E.2d 214 (1st Dist.

1995) (“under the business record exception to the hearsay rule, only the business record itself is admissible into evidence rather than the testimony of the witness who makes reference to the record”).

Want more i got hundreds of these from law class.

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They filed their opposition but the haven't given you the records to prove their claims. What they have basically done is said we only need to make allegations to have a complaint, but your motion to strike is a resonding denial of their claims. You took them by suprise by bringing up the fact that their affiant is without personal knowledge.

They have no documentation, so they are just submitting something to keep the court from dismissing the case. you should file the reply and caselaw to back yourself up. this will prove you have reason to strike and it will allow you to gage how the court will rule.

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OK so when I file an opposition, I just refer to each of the paragraphs they wrote in their motion to deny strike and add case law? Or do I redo my motion to strike basically the same as the one I already filed, but add case law and a copy of her employment history from LinkedIn?

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I think you file your own reply with a memorandum of points and authorities... include all of Gunny's cases and frame your memorandum to show what is wrong.

Also, including the LinkedIn profile is OK, but I really think you should send a subpoena for affiant's employment history and job description. You want to have a nice solid foundation to prove that 1) she can't testify to how the OC kept its books and records, 2) that her conclusion regarding default is hearsay, and 3) the overall affidavit is hearsay.

Two last things... check to see if the affidavits in your state need to sworn under penalty of perjury. If not, add that.

Also, you might want to subpoena the affiant to appear for testimony and cross-examination... LVNV has a track record of making their affiants "unavailable" to appear. Use that to make the argument that she may not even be a real person....

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1ststep

you might want to subpoena the affiant to appear for testimony and cross-examination.. Why?

In Wahad v. Federal Bureau of Investigation, the court determined that awitness cannot testify that a file or business record shows that the defendant is in default. Such testimony is both hearsay (it is an out of court assertion by whoever prepared the records) and violates the best evidence (original document) rule (since it is an attempt to prove the contents of a document without introducing it).

If the witness has not personally observed all of the transactions, the only

permissible form of testimony is to lay a proper foundation for business records showing the transactions and introduce the business records. It is the business records that constitute the evidence, not the testimony of the witness referring to them. If the records are voluminous, they can be summarized and made available, but under no circumstances is the testimony summarizing the records admissible if the records are not tendered. In re deLarco, 313 Ill.App.3d 107, 728 N.E.2d 1278 (2nd Dist. 2000). See generally, Luke v. Unifund CCR, 2-06-444-CV, 2007Tex. App. LEXIS 7096 (2d Dist. Ft. Worth Aug. 31, 2007).

This should shoot their affidavits out of the water and there will be no need to cross.

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OK Honestly I'm stuck....I don't know whether to just do a reply to their opposition or a memorandum of points and authority or how to do an affidavit....this is so overwhelming...all I have is this so far

IN THE DISTRICT COURT OF XXXXX COUNTY, ARKANSAS

DISTRICT DIVISION

LVNV FUNDING LLC PLAINTIFF

Vs. CASE/DIV NO.: XXXXXXXX

XXXXX

XXXXX DEFENDANT

REPLY TO PLAINTIFF'S OPPOSITION TO STRIKE AFFIDAVIT

COMES now Defendant, XXXXXXX for her response to opposition as follows,

I know I have asked a lot, I just don't understand how to word and where to put what ( case law examples ) :|

Edited by brttwill
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OPPOSITION TO PLAINTIFFS MOTION TO STRIKE PLAINTIFF’S AFFIDAVIT

2. I have personal knowledge regarding Plaintiff's creation and maintenance of it's normal business books and records, including computer records of its accounts receivables. This information was regularly and contemporaneously maintained during the course of the Plaintiff's business.

DEFENDANTS ANSWER: The Affiant can not have personal knowledge as he/she was not an employee of the original creditor. If the witness has not personally observed all of the transactions, he/she can not have intimate knowledge of such. Wahad v. Federal Bureau of Investigation.

Manufacturers & Traders Trust Co. v. Medina, (affidavits by attorneys and

others lacking personal knowledge insufficient as a matter of law).

The affiant is an employee of LVNV Funding whom by Arkansas code is a debt collector.

Arkansas Code Title 17, Chapter 24,

(5)(A) "Debt collector" means a person who uses an instrumentality of interstate commerce or the mails in a business whose principal purpose is the collection of debts or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

Since no personal knowledge of the alleged account exists the affidavit is insufficient as a matter of law and should be considered not admissible as evidence.

Which is the same language as the FDCPA so Arkansas follows the fdcpa.

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I will! If I can figure out how to write this stupid thing, I can post it under sample motions, forms etc so anyone in the future with this dilemma can have something to refer to..

I think I need to put in my response something to the effect that their opposition contained irrelevant information as they kept pointing out that they had sufficient cause to bring suit, where as in my motion to strike, I referred to the fact that Juli O'brien was not employed with the OC there for could not have knowledge of transactions of alleged account. They didn't even bring this up in their opposing response. As one stated above, it's just crap they are blabbering to keep it from being dismissed. I'll have something written soon hopefully....I'll try my best and I'll post it and hopefully you all can critique it. I don't want to look like an idiot when I file this paper. :)++

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OK peeps this is what i came up with...I have till Monday to file it...so any critiques would be helpful so I can have it perfect.. Thanks.....

REPLY TO OPPOSITION TO MOTION TO STRIKE AFFIDAVIT

COMES now Defendant, XXXXXXXX for her response to Plaintiff’s opposition to Defendants Motion to Strike Plaintiff’s Affidavit as follows,

1. On September 9, 2011, Plaintiff filed an Opposition to Defendant’s Motion to Strike Plaintiff’s Affidavit. Plaintiff’s response contained information irrelevant to Defendant’s motion to strike. Defendant’s Request to Strike Affidavit is based on the Validity of the sworn, signing Affiant Juli O’Brien as to whether said Affiant truly has or had personal knowledge of “alleged” account.

2. Plaintiff states in their Affidavit that said Affiant has personal knowledge regarding Plaintiff's creation and maintenance of it's normal business books and records, including computer records of its accounts receivables., and that this information was regularly and contemporaneously maintained during the course of the Plaintiff's business.

DEFENDANTS ANSWER: The Affiant can not have personal knowledge as he/she was not an employee of the original creditor. If the witness has not personally observed all of the transactions, he/she can not have intimate knowledge of such. Wahad v. Federal Bureau of Investigation.

Manufacturers & Traders Trust Co. v. Medina, (affidavits by attorneys and

others lacking personal knowledge insufficient as a matter of law).

The affiant is an employee of LVNV Funding whom by Arkansas code is a debt collector.

Arkansas Code Title 17, Chapter 24,

(5)(A) "Debt collector" means a person who uses an instrumentality of interstate commerce or the mails in a business whose principal purpose is the collection of debts or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

Since no personal knowledge of the alleged account exists the affidavit is insufficient as a matter of law and should be considered not admissible as evidence

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.

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Throw in hearsay as well... you want to create several different reasons for the affidavit to be tossed.

So I'd frame it like this:

HEARSAY

  1. Affiant never worked for the OC
  2. Affiant cannot have knowlege of OC's business records
  3. Cases where the affidavits were tossed

AFFIDAVIT IS DEFECTIVE

(check your court rules for applicability)

The affidavit is defective per <RULE> since it is not sworn under penalty of perjury.

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brttwill:

You're pro se... Answer and reply to every scrap of paper that they file, however, if you're in AK look for caselaw that is in your state. Illinois state law has no application to cases in the state courts of AK.

And always be charming to the judge and respectful. Attacking their affiant is a freaking awesome move.

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The gal who signed the affidavit affirmed under penalty of perjury that what she signed is true and correct then had it notarized. I should add perjury to the reply to. Oh and I am in Arkansas not AK ;)

I have this too should I add it? I took out her name but its the gal who swore under oath that she has knowledge of records etc etc etc,,,,this is her work history from LinkedIn it doesn't even show that shes employed with LVNV let alone the OC...what a joke!! LOL

AFFIANTS Experience

Field Sales Rep

Sager Electronics

Privately Held; Electrical/Electronic Manufacturing industry

January 2011 – Present (9 months)

Distribution Business Manager

RF Kimball Company

Electrical/Electronic Manufacturing industry

May 1999 – February 2011 (11 years 10 months)

Sales & Marketing Rep

Pioneer-Standard Electronics

Electrical/Electronic Manufacturing industry

September 1996 – January 1998 (1 year 5 months)

Sales & Marketing Rep

Marshall Industries

Public Company; Semiconductors industry

December 1988 – September 1994 (5 years 10 months)

Edited by brttwill
adding info
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OK...so you can go one of two ways...the first is easy, the second will be a bit more difficult...

1. Read the rules regarding admission of evidence. You have the LinkedIn printout, so what you need to do is use it as foundation to support the hearsay assertions.

2. The easiest - subpoena her to appear as a witness. If pressed, you want to question her knowledge of the account. My guess is that she is "unavailable."

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